FORM OF INDENTURE



 





Exhibit 4.1




INDENTURE




Among




APOGENT TECHNOLOGIES INC.,




FISHER SCIENTIFIC INTERNATIONAL INC.,




and




THE BANK OF NEW YORK, as Trustee




2.25% CONVERTIBLE SENIOR DEBENTURES




DUE 2021




Dated as of August [3], 2004





 









 








CROSS-REFERENCE TABLE*




	 	 	 	 	 
	Trust Indenture	 	Indenture
	Act Section
	 	Section

	 	310	(a)(1)
	 	5.11
	 	 	(a)(2)
	 	5.11
	 	 	(a)(3)
	 	n/a
	 	 	(a)(4)
	 	n/a
	 	 	(a)(5)
	 	5.11
	 	 	(b)
	 	5.3; 5.11
	 	 	(c)
	 	n/a
	 	311	(a)
	 	5.12
	 	 	(b)
	 	5.12
	 	 	(c)
	 	n/a
	 	312	(a)
	 	2.10
	 	 	(b)
	 	14.3
	 	 	(c)
	 	14.3
	 	313	(a)
	 	5.7
	 	 	(b)(1)
	 	n/a
	 	 	(b)(2)
	 	n/a
	 	 	(c)
	 	n/a
	 	 	(d)
	 	n/a
	 	314	(a)
	 	9.4
	 	 	(b)
	 	n/a
	 	 	(c)(1)
	 	n/a
	 	 	(c)(2)
	 	n/a
	 	 	(c)(3)
	 	n/a
	 	 	(d)
	 	n/a
	 	 	(e)
	 	n/a
	 	 	(f)
	 	n/a
	 	315	(a)
	 	5.2
	 	 	(b)
	 	5.2; 5.6
	 	 	(c)
	 	5.2
	 	 	(d)
	 	5.2
	 	 	(e)
	 	4.14
	 	316	(a)(last sentence)
	 	n/a
	 	 	(a)(1)(A)
	 	n/a
	 	 	(a)(1)(B)
	 	n/a
	 	 	(a)(2)
	 	n/a
	 	 	(b)
	 	n/a







 









 






	 	 	 	 	 
	Trust Indenture	 	Indenture
	Act Section
	 	Section

	 	317	(a)(1)
	 	n/a
	 	 	(a)(2)
	 	n/a
	 	 	(b)
	 	n/a
	 	318	(a)
	 	n/a







“n/a” means not applicable.




*This Cross-Reference Table shall not, for any purpose, be deemed to be a part
of the Indenture.




 









 








Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page

	ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	 	 
	Section 1.1	 	Definitions
	 	 	1	 
	Section 1.2	 	Incorporation by Reference of Trust Indenture Act
	 	 	14	 
	Section 1.3	 	Rules of Construction
	 	 	14	 
	ARTICLE II THE SECURITIES
	 	 	 	 
	Section 2.1	 	Title and Terms
	 	 	14	 
	Section 2.2	 	Form of Securities
	 	 	17	 
	Section 2.3	 	Legends
	 	 	18	 
	Section 2.4	 	Execution, Authentication, Delivery and Dating of the Securities
	 	 	22	 
	Section 2.5	 	Registrar and Paying Agent
	 	 	23	 
	Section 2.6	 	Paying Agent to Hold Assets in Trust
	 	 	24	 
	Section 2.7	 	General Provisions Relating to Registration, Transfer and Exchange
	 	 	24	 
	Section 2.8	 	Book-Entry Provisions for the Global Securities
	 	 	25	 
	Section 2.9	 	[Reserved]
	 	 	27	 
	Section 2.10	 	Holder Lists
	 	 	27	 
	Section 2.11	 	Persons Deemed Owners
	 	 	27	 
	Section 2.12	 	Mutilated, Destroyed, Lost or Stolen Securities
	 	 	27	 
	Section 2.13	 	Treasury Securities
	 	 	28	 
	Section 2.14	 	Temporary Securities
	 	 	29	 
	Section 2.15	 	Cancellation
	 	 	29	 
	Section 2.16	 	CUSIP Numbers
	 	 	29	 
	Section 2.17	 	Defaulted Interest
	 	 	30	 
	ARTICLE III DISCHARGE OF INDENTURE
	 	 	 	 
	Section 3.1	 	Discharge of Liability on Securities
	 	 	30	 
	Section 3.2	 	Repayment to the Company
	 	 	30	 
	ARTICLE IV DEFAULTS AND REMEDIES
	 	 	 	 
	Section 4.1	 	Events of Default
	 	 	31	 
	Section 4.2	 	Acceleration of Maturity; Rescission and Annulment
	 	 	33	 
	Section 4.3	 	Other Remedies
	 	 	34	 







i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page

	Section 4.4	 	Waiver of Past Defaults
	 	 	34	 
	Section 4.5	 	Control by Majority
	 	 	35	 
	Section 4.6	 	Limitation on Suit
	 	 	35	 
	Section 4.7	 	Unconditional Rights of Holders to Receive Payment and to Convert
	 	 	36	 
	Section 4.8	 	Collection of Indebtedness and Suits for Enforcement by the Trustee
	 	 	36	 
	Section 4.9	 	Trustee May File Proofs of Claim
	 	 	37	 
	Section 4.10	 	Restoration of Rights and Remedies
	 	 	38	 
	Section 4.11	 	Rights and Remedies Cumulative
	 	 	38	 
	Section 4.12	 	Delay or Omission Not Waiver
	 	 	38	 
	Section 4.13	 	Priorities
	 	 	38	 
	Section 4.14	 	Undertaking for Costs
	 	 	39	 
	Section 4.15	 	Waiver of Stay or Extension Laws
	 	 	39	 
	ARTICLE V THE TRUSTEE
	 	 	 	 
	Section 5.1	 	Certain Duties and Responsibilities
	 	 	39	 
	Section 5.2	 	Certain Rights of Trustee
	 	 	41	 
	Section 5.3	 	Individual Rights of Trustee
	 	 	42	 
	Section 5.4	 	Money Held in Trust
	 	 	42	 
	Section 5.5	 	Trustee’s Disclaimer
	 	 	43	 
	Section 5.6	 	Notice of Defaults
	 	 	43	 
	Section 5.7	 	Reports by Trustee to Holders
	 	 	43	 
	Section 5.8	 	Compensation and Indemnification
	 	 	43	 
	Section 5.9	 	Replacement of Trustee
	 	 	44	 
	Section 5.10	 	Successor Trustee by Merger, Etc
	 	 	45	 
	Section 5.11	 	Corporate Trustee Required; Eligibility
	 	 	45	 
	Section 5.12	 	Collection of Claims Against the Company
	 	 	45	 
	ARTICLE VI CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
	 	 	 	 
	Section 6.1	 	Company May Consolidate, Etc., Only on Certain Terms
	 	 	46	 
	Section 6.2	 	Successor Corporation Substituted
	 	 	47	 
	ARTICLE VII AMENDMENTS, SUPPLEMENTS AND WAIVERS
	 	 	 	 
	Section 7.1	 	Without Consent of Holders of Debentures
	 	 	47	 







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	 	 	 	 	Page

	Section 7.2	 	With Consent of Holders of Debentures
	 	 	48	 
	Section 7.3	 	Compliance with Trust Indenture Act
	 	 	49	 
	Section 7.4	 	Revocation of Consents and Effect of Consents or Votes
	 	 	49	 
	Section 7.5	 	Notation on or Exchange of Debentures
	 	 	50	 
	Section 7.6	 	Trustee to Sign Amendment, Etc
	 	 	50	 
	ARTICLE VIII MEETING OF HOLDERS OF DEBENTURES
	 	 	 	 
	Section 8.1	 	Purposes for Which Meetings May Be Called
	 	 	50	 
	Section 8.2	 	Call Notice and Place of Meetings
	 	 	51	 
	Section 8.3	 	Persons Entitled to Vote at Meetings
	 	 	51	 
	Section 8.4	 	Quorum; Action
	 	 	51	 
	Section 8.5	 	Determination of Voting Rights; Conduct and Adjournment
of Meetings
	 	 	52	 
	Section 8.6	 	Counting Votes and Recording Action of Meetings
	 	 	53	 
	ARTICLE IX COVENANTS
	 	 	 	 
	Section 9.1	 	Payment of Principal, Redemption Price,
Repurchase Price and Interest
	 	 	53	 
	Section 9.2	 	Maintenance of Offices or Agencies
	 	 	54	 
	Section 9.3	 	Corporate Existence
	 	 	54	 
	Section 9.4	 	Reports
	 	 	54	 
	Section 9.5	 	Compliance Certificate
	 	 	55	 
	Section 9.6	 	Resale of Certain Shares of Common Stock
	 	 	55	 
	Section 9.7	 	Tax Treatment of Debentures
	 	 	56	 
	ARTICLE X REDEMPTION OF DEBENTURES
	 	 	 	 
	Section 10.1	 	Optional Redemption
	 	 	56	 
	Section 10.2	 	Notice to Trustee
	 	 	57	 
	Section 10.3	 	Selection of Debentures to Be Redeemed
	 	 	57	 
	Section 10.4	 	Notice of Redemption
	 	 	58	 
	Section 10.5	 	Effect of Notice of Redemption
	 	 	59	 
	Section 10.6	 	Deposit and Payment of Redemption Price
	 	 	59	 
	Section 10.7	 	Debentures Redeemed in Part
	 	 	60	 
	ARTICLE XI REPURCHASE AT THE OPTION OF HOLDERS
	 	 	 	 
	Section 11.1	 	Repurchase Rights
	 	 	60	 
	Section 11.2	 	Company Notice
	 	 	61	 







iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page

	Section 11.3	 	Delivery of Repurchase Notice; Forms of Repurchase Notice; Withdrawal of Repurchase
Notice
	 	 	62	 
	Section 11.4	 	Exercise of Repurchase Rights
	 	 	64	 
	Section 11.5	 	Deposit and Payment of the Applicable Repurchase Price
	 	 	64	 
	Section 11.6	 	Effect of Delivery of Repurchase Notice and Purchase
	 	 	65	 
	Section 11.7	 	Physical Securities Purchased in Part
	 	 	65	 
	Section 11.8	 	Covenant to Comply With Securities Laws Upon Repurchase of
Securities
	 	 	66	 
	Section 11.9	 	Repayment to the Company
	 	 	66	 
	ARTICLE XII CONVERSION OF SECURITIES
	 	 	 	 
	Section 12.1	 	Conversion Privilege
	 	 	66	 
	Section 12.2	 	Conversion Procedure; Conversion Price; Fractional Shares
	 	 	69	 
	Section 12.3	 	Adjustments of Conversion Price for Common Stock
	 	 	70	 
	Section 12.4	 	Consolidation or Merger of Fisher
	 	 	81	 
	Section 12.5	 	Notice of Adjustment
	 	 	82	 
	Section 12.6	 	Notice in Certain Events
	 	 	83	 
	Section 12.7	 	Fisher to Reserve Stock; Registration; Listing
	 	 	84	 
	Section 12.8	 	Taxes on Conversion
	 	 	84	 
	Section 12.9	 	Conversion After Record Date
	 	 	84	 
	Section 12.10	 	Determinations Final
	 	 	85	 
	Section 12.11	 	Responsibility of Trustee for Conversion Provisions
	 	 	85	 
	Section 12.12	 	Payment of Cash in Lieu of Common Stock
	 	 	86	 
	Section 12.13	 	Unconditional Right of Holders to Convert
	 	 	87	 
	ARTICLE XIII GUARANTEES
	 	 	 	 
	Section 13.1	 	Future Subsidiary Guarantees
	 	 	87	 
	Section 13.2	 	Releases
	 	 	87	 
	Section 13.3	 	Fisher Guarantee
	 	 	87	 
	ARTICLE XIV OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	 	 
	Section 14.1	 	Trust Indenture Act Controls
	 	 	90	 
	Section 14.2	 	Notices
	 	 	90	 
	Section 14.3	 	Communication by Holders with Other Holders
	 	 	92	 
	Section 14.4	 	Acts of Holders of Debentures
	 	 	92	 
	Section 14.5	 	Certificate and Opinion as to Conditions Precedent
	 	 	93	 







iv









 






	 	 	 	 	 	 	 
	 	 	 	 	Page

	Section 14.6	 	Statements Required in Certificate or Opinion
	 	 	94	 
	Section 14.7	 	Effect of Headings and Table of Contents
	 	 	94	 
	Section 14.8	 	Successors and Assigns
	 	 	94	 
	Section 14.9	 	Separability Clause
	 	 	94	 
	Section 14.10	 	Benefits of Indenture
	 	 	94	 
	Section 14.11	 	Governing Law
	 	 	95	 
	Section 14.12	 	Counterparts
	 	 	95	 
	Section 14.13	 	Legal Holidays
	 	 	95	 
	Section 14.14	 	Recourse Against Others
	 	 	95	 







EXHIBITS




	 	 	 	 	 	 	 
	EXHIBIT A:	 	Form of Security
	 	 	A1	 
	EXHIBIT B:	 	Assignment Form
	 	 	B1	 
	EXHIBIT C:	 	Form of Repurchase Notice for Optional Repurchase Rights
	 	 	C1	 
	EXHIBIT D:	 	Form of Repurchase Notice for Change of Control Repurchase
Rights
	 	 	D1	 
	EXHIBIT E:	 	Conversion Notice
	 	 	E1	 
	EXHIBIT F:	 	Form of Supplemental Indenture
	 	 	F1	 







v









 










          INDENTURE, dated as of August [3], 2004, among Apogent Technologies Inc.,
a Wisconsin corporation, having its principal office at One Liberty Lane,
Hampton, New Hampshire 03842 (the “Company”), Fisher Scientific International
Inc., a Delaware Corporation, having its principal office at 1 Liberty Lane,
Hampton, New Hampshire 03842 (“Fisher”) and The Bank of New York, a New York
banking corporation, as Trustee (the “Trustee”), having its principal corporate
trust office at 101 Barclay Street, Floor 8 West, New York, New York 10286.







RECITALS OF THE COMPANY








          The Company has duly authorized the creation of an issue of its 2.25%
Convertible Senior Debentures (the “Debentures”) due 2021, together with the
guarantees of (1) Fisher pursuant to this Indenture forming a part hereof and
(2) any other Guarantors (as defined below) pursuant to the terms of any
indentures supplemental hereto that will form a part thereof upon the execution
of such supplemental indenture (the “Guarantees” and, together with the
Debentures, the “Securities”) having the terms, tenor, amount and other
provisions hereinafter set forth, and, to provide therefor, the Company has
duly authorized the execution and delivery of this Indenture.







          All things necessary to make the Securities, when the Securities are duly
executed by the Company and Fisher and the other Guarantors, if any, and
authenticated and delivered hereunder and duly issued by the Company and Fisher
and the other Guarantors, the valid obligations of the Company and Fisher and
the other Guarantors, and to make this Indenture a valid and binding agreement
of the Company and Fisher and the other Guarantors, in accordance with their
and its terms, have been done.



NOW, THEREFORE, THIS INDENTURE WITNESSETH:




          For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:



ARTICLE I




DEFINITIONS AND INCORPORATION BY REFERENCE




          Section 1.1 Definitions.



          For all purposes of this Indenture and the Securities, the following terms
are defined as follows:



          “Act”, when used with respect to any Holder of a Security, has the meaning
specified in Section 14.4(a).



          “Adjusted Interest Rate” means, with respect to any Reset Transaction, the
rate per annum that is the arithmetic average of the rates quoted by two
Reference Dealers engaged in the trading of convertible securities selected by
the Company or its



 









 





successor as the rate at which interest on the Debentures should accrue so
that the Fair Market Value, expressed in dollars, of a Debenture immediately
after the later of:




          (a) the public announcement of the Reset Transaction; or



          (b) the public announcement of a change in dividend policy in connection
with the Reset Transaction,



will equal the average Trading Price of the Debentures for the 20 Trading Days
preceding the date of the public announcement of the Reset Transaction or the
change in dividend policy, as the case may be; provided that the Adjusted
Interest Rate shall not be less than 2.25% per annum.



          “Affiliate” of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
“control”, when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.



          “Agent Member” has the meaning specified in Section 2.8.



          “Bankruptcy Law” means Title 11 of the U.S. Code or any similar federal or
state law for the relief of debtors.



          “Board of Directors” means either the board of directors of the Company or
Fisher, as applicable, or any committee of that board empowered to act for it
with respect to this Indenture.



          “Board Resolution” means a resolution duly adopted by the applicable Board
of Directors, a copy of which, certified by the Secretary or an Assistant
Secretary of the Company or Fisher, as applicable, to be in full force and
effect on the date of such certification, shall have been delivered to the
Trustee.



          “Business
Day”, when used with respect to any Place of Payment or Place of
Conversion, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment or Place of
Conversion, as applicable, are authorized or obligated by law to close.



          “Capital Stock” means, with respect to any Person, any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests (however designated) in equity of such Person,
whether now outstanding or issued after the date of this Indenture, including,
without limitation, all common stock and preferred stock.



          “Cash Amount” has the meaning specified in Section 12.12 hereof.



2









 





          “Cash Settlement Averaging Period” means the 10 Trading Day period
beginning on the third Trading Day after the delivery of the conversion notice
pursuant to Section 12.1.



          “Change of Control” means the occurrence of any of the following after the
original issuance of the Securities when any of the following has occurred:




     (1) the acquisition by any “person”, including any syndicate
or group deemed to be a “person” under Section 13(d)(3) of the
Exchange Act, as amended, of beneficial ownership, directly or
indirectly, through a purchase, merger or other acquisition
transaction or series of purchase, merger or other acquisition
transactions of shares of Fisher’s or the Company’s Capital Stock
entitling such person to exercise 50% or more of the total voting
power of all shares of such company’s Capital Stock entitled to
vote generally in elections of directors, other than any
acquisition by Fisher, any of its Subsidiaries or any of its
employee benefit plans (except that such person shall be deemed to
have beneficial ownership of all securities that such person has
the right to acquire, whether such right is currently exercisable
or is exercisable only upon the occurrence of a subsequent
condition);




     (2) the first day on which a majority of the members of the
Board of Directors of Fisher are not Continuing Directors; or




     (3) any consolidation or merger of Fisher or the Company with
or into any other person (which for purposes of this definition
has the meaning set forth in Section 13(d)(3) of the Exchange
Act), any merger of another person into Fisher or the Company, or
any conveyance, transfer, sale, lease or other disposition of all
or substantially all of the properties and assets of Fisher or the
Company to another person, other than, in each case, (x) any
transaction (i) that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of
Capital Stock of Fisher or the Company, as applicable and (ii)
pursuant to which holders of Capital Stock of Fisher or the
Company, as applicable, immediately prior to such transaction have
the entitlement to exercise, directly or indirectly, 50% or more
of the total voting power of all shares of the Capital Stock of
such company entitled to vote generally in the election of
directors of the continuing or surviving person immediately after
such transaction, (y) any such merger solely for the purpose of
changing the jurisdiction of incorporation of Fisher or the
Company, as applicable, and resulting in a reclassification,
conversion or exchange of outstanding common stock of such company
solely into shares of the common stock of the surviving entity, or
(z) any consolidation or merger of Fisher or the Company with or
into any Fisher Subsidiary, any merger of any Fisher Subsidiary
into Fisher or the Company, or any conveyance, transfer, sale,
lease or other disposition of all or substantially all of the
properties and assets of Fisher or the Company to any Fisher
Subsidiary;



3









 





provided, however, that a Change of Control shall not be deemed to have
occurred if the Sale Price per share of the Common Stock for any five Trading
Days within the period of 10 consecutive Trading Days ending immediately after
the later of the Change of Control or the public announcement of the Change of
Control, in the case of a Change of Control under clause (1) above, or the
period of 10 consecutive Trading Days ending immediately before the Change of
Control, in the case of a Change of Control under clause (2) above, shall equal
or exceed 110% of the Conversion Price of the Debentures in effect on each such
Trading Day or at least 90% of the consideration in the transaction or
transactions constituting a Change of Control consists of shares of common
stock traded or to be traded immediately following such Change of Control on a
national securities exchange or the Nasdaq National Market and, as a result of
the transaction or transactions, the Debentures become convertible solely into
such common stock (and any rights attached thereto).




          “Change of Control Repurchase Date” has the meaning specified in Section
11.1(b) hereof.



          “Change of Control Repurchase Price” has the meaning specified in Section
11.1(b) hereof.



          “Change of Control Repurchase Right” has the meaning specified in Section
11.1(b) hereof.



          “Clearstream” means Clearstream Banking, société anonyme (formerly
Cedelbank).



          “Commission” means the Securities and Exchange Commission or any successor
agency.



          “Common Stock” means any stock of any class of Fisher which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of Fisher and
which is not subject to redemption by Fisher. However, subject to the
provisions of Section 12.2 hereof, shares issuable on conversion of the
Debentures shall include only shares of the class designated as Common Stock,
par value $0.01 per share, of Fisher at the date of execution of this Indenture
or shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of Fisher and which are not subject to redemption by
Fisher, provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares
of all such classes resulting from all such reclassifications.



          “Company” means the corporation named as the “Company” in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to



4









 





the applicable provisions of this Indenture, and thereafter “Company”
shall mean such successor Person.




          “Company Notice” has the meaning specified in Section 11.2(a).



          “Company Order” means a written order signed in the name of the Company by
any Officer.



          “Contingent Interest” has the meaning specified in Section 2.1(d) hereof.



          “Contingent Payment Regulations” has the meaning specified in Section 9.6
hereof.



          “Continuing Directors” means, as of any date of determination, any member
of the Board of Directors of Fisher who (i) was a member of the Board of
Directors of Fisher on August [3], 2004 or (ii) was nominated for election or
elected to the Board of Directors of Fisher with the approval of two thirds of
the Continuing Directors who were members of the Board of Directors of Fisher
at the time of a new director’s nomination or election.



          “Conversion Agent” means any Person authorized by the Company to convert
Debentures in accordance with Article 12. Initially, the Conversion Agent
shall be The Bank of New York.



          “Conversion Date” means, with respect to any Holder, the date on which
such Holder has satisfied all the requirements to convert its Debentures.



          “Conversion Obligation” means the Company’s obligation pursuant to Article
12 to deliver Common Stock, cash or a combination of cash and Common Stock.



          “Conversion Period” means the period from and including the 30th Trading
Day in a fiscal quarter to, but not including, the 30th Trading Day in the
immediately following fiscal quarter.



          “Conversion Price” means the principal amount of Debentures that can be
exchanged for one share of Common Stock (initially $54.45), subject to
adjustments set forth herein.



          “Conversion Rate” means the number of shares of Common Stock into which
each $1,000 principal amount of Debentures is convertible, which is initially
approximately 18.3655, subject to adjustments as set forth herein.



          “Conversion Value” means, on any day, the product of the Sale Price for
the Common Stock on such day multiplied by the then-applicable Conversion Rate.



          “Corporate Trust Office” means for purposes of presentation or surrender
of Debentures for payment, registration, transfer, exchange or conversion or
for service of notices or demands upon the Company or for any other purpose of
this



5









 





Indenture, the office of the Trustee located in New York, New York at
which at any particular time its corporate trust business shall be administered
(which at the date of this Indenture is located at 101 Barclay Street, Floor 8
West, New York, New York 10286).




          “Corporation” means any corporation, association, limited liability
company, company and business trust.



          “Credit Agreement” means the bank credit agreement dated as of July 29,
2003, among the Company, certain subsidiary guarantors and co-borrowers thereto
and the several lenders parties thereto, as such Credit Agreement is amended,
modified or supplemented from time to time in accordance with the terms
thereof.



          “Current Market Price” has the meaning set forth in Section 12.3(g).



          “Custodian” means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.



          “Debentures” has the meaning specified in the first paragraph under the
caption “Recitals of the Company.”



          “Default” means an event which is, or after notice or lapse of time or
both would be, an Event of Default.



          “Defaulted Payment” has the meaning specified in Section 4.1(b).



          “Defaulted Interest” has the meaning specified in Section 2.17.



          “Depositary” means The Depository Trust Company, its nominees and their
respective successors.



          “Dividend Yield” on any security for any period means the dividends paid
or proposed to be paid pursuant to an announced dividend policy on such
security for such period, divided by, if with respect to dividends paid on such
security, the average Sale Price of such security during such period and, if
with respect to dividends proposed to be paid on such security, the Sale Price
of such security on the effective date of the related Reset Transaction.



          “Dollar” or “$” means a U.S. dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.



          “Euroclear” means Euroclear Bank. S.A./N.V., as operator of the Euroclear
System (or any successor securities clearing agency).



          “Event of Default” has the meaning specified in Section 4.1.



          “Exchange Act” means the Securities Exchange Act of 1934, as amended and
the rules and regulations of the Commission thereunder.



6









 





          “Excluded Subsidiary” means any Subsidiary of the Company that is not or
has ceased to be a guarantor of the Company’s indebtedness under the Credit
Agreement.



          “Expiration Time” has the meaning specified in Section 12.3(f).



          “Excess Amount” has the meaning specified in Section 12.3(f).



          “Ex-Dividend Time” means, with respect to any issuance or distribution on
shares of Common Stock, the first date on which the shares of Common Stock
trade regular way on the principal securities market on which the shares of
Common Stock are then traded without the right to receive such issuance or
distribution.



          “Fair Market Value” has the meaning set forth in Section 12.3(g).







          “Fisher” means
the corporation named as “Fisher” in the first paragraph of
this instrument until a successor Person shall have become obligated
under this Indenture pursuant to Section 12.4 hereof.







          “Fisher Subsidiary” means a corporation more than 50% of the outstanding
Voting Stock of which is owned, directly or indirectly, by Fisher or by one or
more other such corporations, or by Fisher and one or more other such
corporations.



          “GAAP” has the meaning set forth in Section 1.3.



          “Global Security” has the meaning specified in Section 2.2.



          “Guarantees” means the obligations of the Guarantors described herein.







          “Guarantors” means
(i) Fisher and (ii) each Person who becomes a Guarantor
pursuant to Section 13.1 of this Indenture; provided that, pursuant to Section
13.2 hereof, a Subsidiary shall no longer be deemed a Guarantor
pursuant to this clause (ii) if it is released from its
Guarantee pursuant to Section 13.2 hereof.







          “Holder”, when used with respect to any Security, including any Global
Security, means the Person in whose name the Security is registered in the
Register.



          “Indenture” means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.



          “Interest” means, with respect to any Debenture, the interest payable on
such Debenture based upon the applicable Interest Rate.



          “Interest Payment Date” means each of April 15 and October 15, provided,
however, that if any such date is not a Business Day, the Interest Payment Date
shall be the next succeeding Business Day.



          “Interest Rate” has the meaning specified in Section 2.1(c).



7









 





          “Issue Date” means August [3], 2004.



          “Maturity” means the date on which the Outstanding principal amount,
Redemption Price or Repurchase Price with respect to a Debenture becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
acceleration, conversion, call for redemption, exercise of a repurchase right
or otherwise.



          “Nasdaq National Market” means the National Association of Securities
Dealers Automated Quotation National Market or any successor national
securities exchange or automated over-the-counter trading market in the United
States.



          “Non-Electing Share” has the meaning specified in Section 12.4.







          
“Obligations” means any principal, interest,
including interest accruing on or after the
filing of any petition of bankruptcy or for reorganization (whether or not a
claim for post-filing interest is allowed in such proceeding), penalties, fees,
charges, expenses, indemnifications, reimbursement obligations, guarantees and
other liabilities or amounts payable under the documentation governing any
indebtedness or in respect thereto.







          “Officer” of the Company, Fisher or a Guarantor means the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Financial Officer,
the Treasurer, any Assistant Treasurer, any Vice President or the Secretary or
any Assistant Secretary, or persons holding similar positions of the Company,
Fisher or a Guarantor, as the case may be.








     
“Officers’ Certificate” means, with respect to the Company
or Fisher, a certificate signed by both (1) the Chairman of the Board, the
Chief Executive Officer, the President or a Vice President of the Company
or Fisher, as applicable, and (2) so long as not the same as the officer
signing pursuant to clause (1), the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company or Fisher, as applicable, and delivered to the
Trustee.











          
“Opinion of Counsel” means with respect to the
Company or Fisher, a written opinion of counsel, who may be
counsel to the Company or Fisher, as applicable (and may
include directors or employees of the Company or Fisher, as
applicable) and in form and substance acceptable to the Trustee.







          “Optional Repurchase Date” has the meaning specified in Section 11.1(a)
hereof.



          “Optional Repurchase Price” has the meaning specified in Section 11.1(a)
hereof.



          “Optional Repurchase Right” has the meaning specified in Section 11.1(a)
hereof.



8









 





          “Outstanding”, when used with respect to Debentures, means, as of the date
of determination, all Debentures theretofore authenticated and delivered under
this Indenture, except Debentures:




     (1) previously canceled by the Trustee or delivered to the
Trustee for cancellation;




     (2) for the payment or redemption of which money in the
necessary amount has been previously deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Debentures;
provided, however, that if such Debentures are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture; and




     (3) which have been paid in exchange for or in lieu of other
Securities which have been authenticated and delivered pursuant to
this Indenture, other than any such Security in respect of which
there shall have been presented to the Trustee proof satisfactory
to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;



provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Debentures are present at a meeting of Holders
of Debentures for quorum purposes or have consented to or voted in favor of any
request, demand, authorization, direction, notice, consent, waiver, amendment
or modification hereunder, Debentures held for the account of the Company or
Fisher or of any of their Affiliates shall be disregarded and deemed not to be
Outstanding, except that in determining whether the Trustee shall be protected
in making such a determination or relying upon any such quorum, consent or
vote, only Debentures which a Responsible Officer of the Trustee actually knows
to be so owned shall be so disregarded.




          “Paying Agent” has the meaning specified in Section 2.5.



          “Person” means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political
subdivision thereof.



          “Physical Securities” means Securities issued in definitive, fully
registered form without interest coupons, substantially in the form of Exhibit
A hereto, with the applicable legend as provided in Section 2.3.



          “Place of Conversion” means any city in which any Conversion Agent is
located.



          “Place of Payment” means any city in which any Paying Agent is located.



9









 





          “Predecessor Security” of any particular Security, means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.12 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.



          “Record Date” has the meaning assigned to it in Section 12.3(g).



          “Redemption
Date”, when used with respect to any Debenture to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.



          “Redemption
Price”, when used with respect to any Debenture to be
redeemed, means 100% of the principal amount of the Debenture.



          “Reference Dealer” means a dealer engaged in the trading of convertible
securities selected by the Company for the purpose for which such dealers are
quoted or otherwise to which they are referred herein.



          “Reference Period” has the meaning set forth in Section 12.3(d).



          “Register” has the meaning specified in Section 2.5.



          “Registrar” has the meaning specified in Section 2.5.



          “Regular Record Date” for the Interest (including Contingent Interest)
payable on the Debentures means April 1 and October 1 (whether or not a
Business Day), as applicable, next preceding the corresponding Interest Payment
Date.



          “Repurchase Date” has the meaning specified in Section 11.1(b) hereof.



          “Repurchase Notice” has the meaning specified in Section 11.2(a) hereof.



          “Repurchase Price” has the meaning specified in Section 11.1(b) hereof.



          “Repurchase Right” has the meaning specified in Section 11.1(b) hereof.



          “Reset Transaction” means any of (1) a merger, consolidation or statutory
share exchange to which the entity that is the issuer of the shares of the
common stock into which the Debentures are then convertible is a party, (2) a
sale of all or substantially all the assets of that entity, (3) a
recapitalization of the common stock of that entity or (4) a distribution
contemplated by Section 12.3(d), in any case, after the effective date of which
transaction or distribution the Debentures would be convertible into either:




     (a) shares of an entity, the common stock of which had a
Dividend Yield for the four fiscal quarters of such entity
immediately



10









 






preceding the public announcement of such transaction or
distribution that was more than 2.5 percentage points higher than
the Dividend Yield on the Common Stock (or other common stock then
issuable upon a conversion of the Debentures) for the four fiscal
quarters preceding the public announcement of such transaction or
distribution; or




     (b) shares of an entity that announces a dividend policy
prior to the effective date of such transaction or distribution
which policy, if implemented, would result in a Dividend Yield on
such entity’s common stock for the next four fiscal quarters that
would result in such a 2.5-percentage points increase.



          “Responsible
Officer”, when used with respect to the Trustee, means any
officer of the Trustee, including any vice president, assistant vice president,
assistant secretary, any assistant treasurer, or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such officer’s knowledge of and familiarity with the particular
subject.



          “Restricted Securities” means the Securities defined as such in Section
2.3(a).



          “Restricted Securities Legend” has the meaning set forth in Section
2.3(a).



          “Rule 144” means Rule 144 as promulgated under the Securities Act
(including any successor rule thereof), as the same may be amended from time to
time.



          “Rule 144A” means Rule 144A as promulgated under the Securities Act
(including any successor rule thereof), as the same may be amended from time to
time.



          “Sale Price” of a security on any date of determination means:




     (1) the closing sale price (or, if no closing sale price is
reported, the last reported sale price) of a security (regular
way) on the New York Stock Exchange on that date;




     (2) if that security is not listed on the New York Stock
Exchange on that date, the closing sale price as reported in the
composite transactions for the principal U.S. securities exchange
on which that security is listed;




     (3) if that security is not so listed on a U.S. national or
regional securities exchange, the closing sale price as reported
by the Nasdaq National Market;



11









 






     (4) if that security is not so reported, the last price
quoted by Interactive Data Corporation for that security or, if
Interactive Data Corporation is not quoting such price, a similar
quotation service selected by the Company; or




     (5) if that security is not so quoted, the average of the
mid-point of the last bid and ask prices for that security from at
least two dealers recognized as market-makers for that security.



          “Securities” has the meaning ascribed to it in the first paragraph under
the caption “Recitals of the Company”.



          “Securities Act” means the Securities Act of 1933, as amended and the
rules and regulations of the Commission thereunder.



          “Significant Subsidiary” has the meaning assigned to it under Rule 405 of
the Securities Act.



          “Spin-off” has the meaning assigned to it in Section 12.3(d).



          “Stated Maturity” has the meaning assigned to it in Section 2.1(b).



          “Subsidiary” means a corporation more than 50% of the outstanding Voting
Stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.



          “TIA” means the Trust Indenture Act of 1939, as amended (15 U.S. Code
Section 77aaa 77bbbb), as in effect on the date of this Indenture; provided,
however, that in the event the TIA is amended after such date, “TIA” means, to
the extent required by such amendment, the Trust Indenture Act of 1939, as so
amended, or any successor statute.



          “Trading Day” means:




     (1) if the applicable security is listed or admitted for
trading on the New York Stock Exchange, a day on which the New
York Stock Exchange is open for business;




     (2) if that security is not listed on the New York Stock
Exchange, a day on which trades may be made on the Nasdaq National
Market;




     (3) if that security is not so listed on the New York Stock
Exchange and not quoted on the Nasdaq National Market, a day on
which the principal U.S. securities exchange on which the
securities are listed is open for business; or



12









 






     (4) if the applicable security is not so listed, admitted for
trading or quoted, any day other than a Saturday or a Sunday or a
day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.



          “Trading Price” of a Debenture on any date of determination means:




     (1) the average of the secondary market bid quotations per
$1,000 principal amount of Debentures obtained by the Company for
$10,000,000 principal amount of the Debentures at approximately
3:30 p.m., New York City time, on such determination date from
three independent nationally recognized securities dealers
selected by the Company;




     (2) if at least three such bids cannot reasonably be obtained
by the Company, but two such bids are obtained, then the average
of the two bids shall be used;




     (3) if only one such bid can reasonably be obtained by the
Company, this one bid shall be used; or




     (4) if the Company cannot reasonably obtain at least one bid
for $10,000,000 principal amount of the Debentures from a
nationally recognized securities dealer or in the Company’s
reasonable judgment, the bid quotations are not indicative of the
secondary market value of the Debentures, then the trading price
per $1,000 principal amount of the Debentures will equal (i) the
then-applicable Conversion Rate of the Debentures multiplied by
(ii) the Sale Price of the Common Stock on such determination
date.



          “Transfer Agent” means Mellon Investor Services LLC (or any successor
thereto).



          “Trigger Event” has the meaning specified in Section 12.3(d).



          “Trustee” means the Person named as the “Trustee” in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter “Trustee” shall
mean such successor Trustee.



          “Vice
President”, when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added
before or after the title “vice president”.



          “Voting Stock” means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.



13









 






          Section 1.2 Incorporation by Reference of Trust Indenture Act.



          Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.



          The following TIA terms used in this Indenture have the following
meanings:



          “indenture securities” means the Securities;



          “indenture security holder” means a Holder;



          “indenture to be qualified” means this Indenture;



          “indenture trustee” or “institutional trustee” means the Trustee; and



          “obligor” on the Securities means the Company and any other obligor on the
indenture securities.



          All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meanings assigned to them by such definitions.



          Section 1.3 Rules of Construction.



          For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:




     (1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;




     (2) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles in the United States prevailing at
the time of any relevant computation hereunder (“GAAP”);




     (3) the words “herein”, “hereof” and “hereunder” and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision;




     (4) all references to section and article numbers in this
Indenture shall refer to sections and articles hereof, unless
otherwise specified.



ARTICLE II




THE SECURITIES




          Section 2.1 Title and Terms.



14









 





          (a) The Debentures shall be designated as the “2.25% Convertible Senior
Debentures due 2021” of the Company. The aggregate principal amount of
Debentures which may be authenticated and delivered under this Indenture is
limited to $[300] million, except for Debentures authenticated and delivered
upon registration of, transfer of, or in exchange for, or in lieu of other
Debentures pursuant to Sections 2.7, 2.8, 2.12, 7.5 or 10.7, hereof. The
Debentures shall be issuable in denominations of $1,000 or integral multiples
thereof.



          (b) The
Debentures shall mature on October 15, 2021 (the “Stated
Maturity”).



          (c) The Debentures shall bear Interest from the Issue Date until the
principal amount thereof is paid or made available for payment, or until such
date on which the Debentures are converted, redeemed or purchased as provided
herein, (i) prior to the occurrence of a Reset Transaction, 2.25% per annum,
and (ii) following the occurrence of a Reset Transaction, the Adjusted Interest
Rate related to such Reset Transaction to, but not including, the effective
date of any succeeding Reset Transaction (as adjusted, if at all, the “Interest
Rate”). Interest shall be payable semiannually in arrears on each Interest
Payment Date, commencing October 15, 2004, with interest payable in Dollars to
Holders in whose names the Debentures are registered at the close of business
on the preceding April 1 and October 1, respectively, of each year (or, if such
date is not a Business Day, at the close of business on the immediately
succeeding Business Day).



          (d) In
addition, interest (the “Contingent Interest”) will accrue on each
Debenture during any six-month period from April 15 to October 14 and from
October 15 to April 14, as appropriate, commencing with the six-month period
beginning October 15, 2004, if the average Trading Price of a Debenture for the
five Trading Days ending on the second Trading Day immediately preceding the
beginning of the relevant six-month period equals 120% or more of the principal
amount of such Debenture. The rate of Contingent Interest payable in respect
of any six-month period will equal the greater of (i) a per annum rate equal to
5.0% of our estimated per annum borrowing rate for senior non-convertible
fixed-rate indebtedness with a maturity date comparable to the Debentures and
(ii) 0.30% per annum, in each case based on the outstanding principal amount of
the Debentures. Contingent Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months. Upon determination that Holders of
Debentures will be entitled to receive Contingent Interest during any relevant
six-month period, on or prior to the start of the relevant six-month period,
the Company shall issue a press release and publish information with respect to
any Contingent Interest on its web site. The Company shall pay Contingent
Interest, if any, in the same manner as it shall pay Interest pursuant to
Section 2.1(c) hereof and the obligations of Holders in respect of the payment
of Contingent Interest in connection with the conversion of any Debenture will
also be the same as described in Section 2.1(c) hereof.



          (e) Interest (including Contingent Interest) on the Debentures shall be
computed (i) for any full semi-annual period for which a particular Interest
Rate is applicable, on the basis of a 360-day year of twelve 30-day months and
(ii) for any period



15









 





for which a particular Interest Rate is applicable for less than a full
semiannual period for which interest is calculated, on the basis of a 30-day
month and, for such periods of less than a month, the actual number of days
elapsed over a 30-day month. For purposes of determining the Interest Rate,
the Trustee may assume that a Reset Transaction has not occurred unless the
Trustee has received an Officers’ Certificate stating that a Reset Transaction
has occurred and specifying the Adjusted Interest Rate then in effect.




          (f) Interest (including Contingent Interest) shall be due and payable on a
Debenture as follows:




          (1) A registered Holder of any Debenture as of the
close of business on a Regular Record Date shall be
entitled (except as otherwise indicated in this Section
2.1(f)) to receive and shall receive, as the registered
Holder as of such Regular Record Date, Interest (including
Contingent Interest) on such Debenture on the corresponding
Interest Payment Date (other than any Debenture whose
Stated Maturity is prior to such Interest Payment Date).




          (2) In the event that a Debenture becomes subject to
redemption pursuant to Article 10 and the Redemption Date
occurs after a Regular Record Date, the Person whose
Debenture becomes subject to redemption (and only such
Person rather than the Holder as of such Regular Record
Date) shall be entitled to receive and shall receive
accrued and unpaid Interest (including Contingent Interest)
from the preceding Interest Payment Date (or such earlier
date on which Interest, including Contingent Interest, if
any, was last paid) to but not including the Redemption
Date on such Debenture, even if such Person is not the
Holder of such Debenture.




          (3) In the event that a Debenture becomes subject to
purchase pursuant to Article 11, a Holder of any Debenture
who exercises a repurchase right with respect to such
Debenture shall be entitled to receive and shall receive
Interest (including Contingent Interest) to but not
including the applicable purchase date for such Debenture,
which amount shall be included in the applicable purchase
price thereof.




          (4) In the event that a Debenture is converted
pursuant to Article 12, the Holder who converts such
Debenture on any date other than an Interest Payment Date
shall not be entitled to accrued and unpaid Interest
(including Contingent Interest) from the preceding Interest
Payment Date until the Conversion Date, or otherwise, on
such Debenture, such amounts being deemed to have been paid
by receipt of shares of Common Stock in full rather than
canceled, extinguished or forfeited; and, accordingly, a
Holder which converts a Debenture after a Regular Record
Date but prior



16









 






to the corresponding Interest Payment Date will
receive accrued and unpaid Interest (including Contingent
Interest) for such period on such Interest Payment Date but
will be required to remit to the Company an amount equal to
that Interest (including Contingent Interest) at the time
such Holder surrenders the Debenture for conversion,
provided that such Holder will not be required to remit
such Interest (including Contingent Interest) if, prior to
conversion, the Company has called such Debentures for
redemption and the Holder converts such Debentures prior to
the applicable Redemption Date.



          (g) Payment of any principal, Redemption Price, Repurchase Price and
Interest and Contingent Interest, if any, on, Global Securities shall be
payable by the Company to the Depositary in immediately available funds.



          (h) Payment of any principal on Physical Securities shall be made at the
office or agency of the Company maintained for such purpose, initially the
Corporate Trust Office of the Trustee. Interest, including Contingent
Interest, if any, on Physical Securities will be payable by (i) U.S. Dollar
check drawn on a bank in The City of New York mailed to the address of the
Person entitled thereto as such address shall appear in the Register, or (ii)
upon written application to the Registrar not later than the relevant Regular
Record Date by a Holder of a principal amount of Securities in excess of
$5,000,000, wire transfer in immediately available funds, which application
shall remain in effect until the Holder notifies, in writing, the Registrar to
the contrary.



          (i) The Debentures are redeemable at the option of the Company as provided
in and subject to Article 10.



          (j) The Debentures shall be purchased by the Company at the option of
Holders as provided in and subject to Article 11.



          (k) The Debentures shall be convertible at the option of the Holders as
provided in and subject to Article 12.



          (l) The Debentures shall be jointly and severally guaranteed by the
Guarantors as provided in Article 13 hereof.



          Section 2.2 Form of Securities.



          (a) Except as otherwise provided pursuant to this Section 2.2, the
Securities are issuable in fully registered form without coupons, in
substantially the form of Exhibit A hereto, with such applicable legends as are
provided for in Section 2.3. The Securities are not issuable in bearer form.
The terms and provisions contained in the form of Security shall constitute,
and are hereby expressly made, a part of this Indenture and to the extent
applicable, the Company, and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby.




17










 





          (b) The Securities will be issued on the Issue Date in the form of one or
more permanent global Securities in fully registered form without interest
coupons, substantially in the form of Exhibit A hereto, with the applicable
legends as provided in Section 2.3 (each a “Global Security” and collectively
the “Global Securities”). Each Global Security shall be duly executed by the
Company and authenticated and delivered by the Trustee, and shall be registered
in the name of the Depositary or its nominee and retained by the Trustee, as
Custodian, at its Corporate Trust Office. The aggregate principal amount at
Maturity of the Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as Custodian, and
of the Depositary or its nominee, as hereinafter provided.



          (c) Physical Securities [        ] may be exchanged
for interests in Global Securities pursuant to Section 2.8(d) only.



          Section 2.3 Legends.



          (a) Restricted Securities Legends.



          Each share of Common Stock issued upon conversion of any Debenture issued
hereunder before the date upon which the Fisher guarantee of the Debentures
becomes effective pursuant to Section 13.3 of this Indenture, shall, upon
issuance, bear the legend set forth in Section 2.3(a)(i) (a “Restricted
Securities Legend”), and such legend shall not be removed except as provided in
Section 2.3(a)(ii). Each share of Common Stock issued upon conversion of such
Debenture that bears or is required to bear the Restricted Securities Legend
(the “Restricted Securities”) shall be subject to the restrictions on transfer
set forth in this Section 2.3(a) (including the Restricted Securities Legend
set forth below), and the Holder of each such Restricted Security, by such
Holder’s acceptance thereof, shall be deemed to have agreed to be bound by the
restrictions on transfer set forth herein.



          As used in Section 2.3(a), the term “transfer” encompasses any sale,
pledge, transfer or other disposition whatsoever of any Restricted Security.



          (i) Restricted Securities Legend for Common Stock Issued Upon
Conversion of the Debentures.



          Until the expiration of the period of time specified in Section 2.3(a)(ii)
below, any shares of Common Stock issued upon conversion of any Debenture
issued hereunder before the date upon which the Fisher guarantee of the
Debentures becomes effective pursuant to Section 13.3 of this Indenture shall
bear a Restricted Securities Legend in substantially the following form:




THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE



18









 










FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT UNTIL THE
EXPIRATION OF TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE
COMMON STOCK EVIDENCED
HEREBY,








     (1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE
SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT IS PURCHASING COMMON STOCK IN AN AGGREGATE
PRINCIPAL AMOUNT OF AT LEAST $100,000 AND THAT PRIOR TO
SUCH TRANSFER, FURNISHES TO MELLON INVESTOR SERVICES LLC AS
TRANSFER AGENT (OR ANY SUCCESSOR TRANSFER AGENT, AS
APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND WARRANTIES RELATING TO THE RESTRICTIONS
ON TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (C)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (D)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER;




     (2) PRIOR TO ANY SUCH TRANSFER OTHER THAN A TRANSFER
PURSUANT TO CLAUSE (1)(D) ABOVE, IT WILL FURNISH TO MELLON
INVESTOR SERVICES LLC (OR ANY SUCCESSOR TRANSFER AGENT, AS
APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND




     (3) IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON
STOCK EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO A CLAUSE (1)(D) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.



19









 






THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF
THE COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE (1)(D) ABOVE
OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE
SECURITY UPON THE CONVERSION OF WHICH THE COMMON STOCK EVIDENCED
HEREBY WAS ISSUED.



          (ii) Removal of the Restricted Securities Legends.







          All shares of
Common Stock issued upon conversion of any Debenture before
the date upon which the Fisher Guarantee (as defined herein) becomes
effective pursuant to Section 13.3
of this Indenture shall bear the Restricted Securities Legend, until the
earlier of:








     (1) the date which is two years after the original
issuance date of such shares of Common Stock; and




     (2) the date such shares of Common Stock have been
sold pursuant to a registration statement that has been
declared effective under the Securities Act (and which
continues to be effective at the time of such sale).


The Holder must give notice thereof to the Trustee, as applicable.




          In the event Rule 144(k) as promulgated under the Securities Act is
amended to shorten the two-year period under Rule 144(k), then the references
in the restrictive legends set forth above and in the corresponding transfer
restrictions described above to “TWO YEARS” and “two years,” respectively, will
be deemed to refer to such shorter period, from and after receipt by the
Trustee of an Officers’ Certificate of the Company and an Opinion of Counsel of
the Company to that effect. As soon as practicable after the Company knows of
the effectiveness of any such amendment to shorten the two-year period under
Rule 144(k), unless such changes would otherwise be prohibited by, or would
cause a violation of, the federal securities laws applicable at the time, the
Company will provide to the Trustee an Officers’ Certificate of the Company and
an Opinion of Counsel of the Company as to the effectiveness of such amendment
and the effectiveness of such change to the restrictive legends and transfer
restrictions.



          Notwithstanding the foregoing, the Restricted Securities Legend may be
removed if there is delivered to the Company such satisfactory evidence, which
may include an opinion of independent counsel, as may be reasonably required by
the Company that neither such legend nor the restrictions on transfer set forth
therein are required to ensure that transfers of such shares of Common Stock
will not violate the registration requirements of the Securities Act. Upon
provision of such satisfactory evidence, the Transfer Agent, at the written
direction of the Company, shall authenticate and deliver in exchange for such
shares of Common Stock another certificate representing an equal number of
shares of Common Stock that does not bear such legend. If the Restricted
Securities Legend has been removed from such shares of Common Stock as provided
above, no other shares of Common Stock issued in exchange for all or any



20









 




part of such shares of Common Stock shall bear such legend, unless the
Company has reasonable cause to believe that such other shares of Common Stock
are “restricted securities” within the meaning of Rule 144 and instructs the
Transfer Agent in writing to cause a Restricted Securities Legend to appear
thereon.








          Any such shares of Common Stock as to which such restrictions on transfer
shall have expired in accordance with their terms or as to which the conditions
set forth in Section 2.3(a)(ii) for removal of the Restricted Securities Legend
have been satisfied may, upon surrender of the certificates representing such
shares of Common Stock for exchange in accordance with the procedures of the
Transfer Agent, be exchanged for a new certificate or certificates for a like
aggregate number of shares of Common Stock, which shall not bear the Restricted
Securities Legend.







          (b) Global Security Legend.




Each Global Security shall also bear the following legend
on the face thereof:




UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN ARTICLE 2 OF THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.




(c) Legend for Physical Securities.



           Physical Securities, in addition to the legend set forth in Section
2.3(a)(i), will also bear a legend substantially in the following form:



21









 







THIS SECURITY WILL NOT BE ACCEPTED IN EXCHANGE FOR A
BENEFICIAL INTEREST IN A GLOBAL SECURITY UNLESS THE HOLDER
OF THIS SECURITY, SUBSEQUENT TO SUCH EXCHANGE, WILL HOLD
EITHER NO SECURITIES OR A MINIMUM AGGREGATE BENEFICIAL
INTEREST IN THE SECURITIES OF AT LEAST TWO HUNDRED FIFTY
THOUSAND DOLLARS ($250,000).




(d) Tax Legend.



           All Securities, in addition to any other legends required by this Section
2.3, will also bear a legend substantially in the following form:




THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT AND IS
SUBJECT TO THE RULES FOR DEBT INSTRUMENTS WITH CONTINGENT
PAYMENTS UNDER TREASURY REGULATION § 1.1275-4(b). FOR
INFORMATION REGARDING THE ISSUE PRICE, THE AMOUNT OF
ORIGINAL ISSUE DISCOUNT, ISSUE DATE, THE YIELD TO MATURITY,
THE COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE FOR
THIS SECURITY, YOU SHOULD SUBMIT A WRITTEN REQUEST FOR IT
TO THE COMPANY AT THE COMPANY’S ADDRESS SPECIFIED IN
SECTION 14.2 OF THE INDENTURE.



          Section 2.4 Execution, Authentication, Delivery and Dating of the
Securities.



          (a) Two Officers shall execute the Securities on behalf of the Company by
manual or facsimile signature. Securities bearing the manual or facsimile
signatures of individuals who were at the time of the execution of the
Securities the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of authentication of such Securities.



          (b) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise. No Security shall be entitled to
any benefit under this Indenture, or be valid or obligatory for any purpose,
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by or on behalf of the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly



22









 




authenticated and delivered hereunder. The Trustee may appoint an
authenticating agent or agents reasonably acceptable to the Company with
respect to the Securities. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent.




          (c) Each Security shall be dated the date of its authentication. The
Trustee shall authenticate and deliver Securities for original issue in an
aggregate principal amount of up to $300 million upon one or more Company
Orders without any further action by the Company. The aggregate principal
amount of Securities Outstanding at any time may not exceed the amount set
forth in the foregoing sentence.



          Section 2.5 Registrar and Paying Agent.



          The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the
“Registrar”) and an
office or agency where Securities may be presented for payment (the “Paying
Agent”). The Registrar shall keep a register of the Securities (the
“Register”) and of their transfer and exchange. The Company may appoint one or
more co Registrars and one or more additional Paying Agents for the Securities.
The term “Paying Agent” includes any additional paying agent and the term
“Registrar” includes any additional registrar. The Company may change any
Paying Agent or Registrar without prior notice to any Holder.



          The Company will cause each Paying Agent (other than The Bank of New York)
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:




     (1) hold all sums of money or Common Stock held by it
for the payment of any amounts due and payable in respect
of the Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as provided in this
Indenture;




     (2) give the Trustee notice of any Default by the
Company in the making of any such payment; and




     (3) at any time during the continuance of any such
Default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.



          The Company shall give prompt written notice to the Trustee of the name
and address of any Agent who is not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any Affiliate of the Company may act
as Paying Agent or Registrar; provided, however, that none of the Company, its
subsidiaries or the Affiliates of the foregoing shall act:



23









 






     (1) as Paying Agent in connection with redemptions, offers
to purchase and discharges, except as otherwise specified in this
Indenture, and




     (2) as Paying Agent or Registrar if a Default or Event of
Default has occurred and is continuing.



          The Company hereby initially appoints The Bank of New York as Registrar
and Paying Agent for the Securities.



          Section 2.6 Paying Agent to Hold Assets in Trust.



          Not later than 10:00 a.m. (New York City time) on or prior to each due
date of payments in respect of any Security, the Company shall deposit with one
or more Paying Agents a sum of money in immediately available funds or Common
Stock sufficient to make such payments when so becoming due. The Company at
any time may require a Paying Agent to pay all money or Common Stock held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company) shall have no further liability for the money or Common Stock
so paid over to the Trustee.



          The Company shall require each Paying Agent (other than the Trustee) to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money or Common Stock held by the Paying Agent for
the making of payments in respect of the Securities and shall notify the
Trustee of any Default by the Company in making any such payment. At any time
during the continuance of any such Default, the Paying Agent shall, upon the
written request of the Trustee, forthwith pay to the Trustee all money or
Common Stock so held in trust.



          If the Company shall act as a Paying Agent, it shall, prior to or on each
such due date, segregate and hold in trust for the benefit of the Holders a sum
sufficient with monies held by all other Paying Agents, to pay such amounts so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as provided in this Indenture, and shall promptly notify the
Trustee of its action or failure to act.



          Section 2.7 General Provisions Relating to Registration, Transfer and
Exchange.



          The Securities are issuable only in registered form. A Holder may
transfer a Security only by written application to the Registrar stating the
name of the proposed transferee and otherwise complying with the terms of this
Indenture. No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Holder only upon, final acceptance and registration
of the transfer by the Registrar in the Register. Furthermore, any Holder of a
Global Security shall, by acceptance of such Global Security, agree that
transfers of beneficial interests in such Global Security may be effected only
through a book-entry system maintained by the Holder of such Global Security
(or its agent) and that ownership of a beneficial interest in the Global
Security shall be required to be reflected in a book-entry.



24









 





          When Securities are presented to the Registrar with a request to register
the transfer or to exchange them for an equal principal amount of Securities of
other authorized denominations, the Registrar shall register the transfer or
make the exchange as requested if the requirements hereunder for such
transactions are met (including that such Securities are duly endorsed or
accompanied by a written instrument of transfer duly executed by the Holder
thereof or by an attorney who is authorized in writing to act on behalf of the
Holder). Subject to Section 2.4, to permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar’s request. No service charge shall be made for any
registration of transfer or exchange or redemption of the Securities, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any
such transfer taxes or other similar governmental charge payable upon exchanges
pursuant to Sections 2.14, 7.5 or 10.7).



          Neither the Company nor the Registrar shall be required to exchange or
register a transfer of any Securities:




     (1) for a period of 15 days prior to the day of
mailing of notice of redemption of Securities under Article
10 hereof;




     (2) so selected for redemption or, if a portion of any
Security is selected for redemption, such portion thereof
selected for redemption; or




     (3) surrendered for conversion or, if a portion of any
Security is surrendered for conversion, such portion
thereof surrendered for conversion.



          The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.



          Section 2.8 Book-Entry Provisions for the Global Securities.



          (a) The Global Securities initially shall:




     (1) be registered in the name of the Depositary; and




     (2) be delivered to the Trustee as custodian for such
Depositary, for credit to the accounts of the members of,
participants in, the Depositary (the “Agent Members”)
holding the Securities evidenced thereby, registered with
the Depositary for



25









 






credit to the accounts of the Agent Members then
holding such Securities on behalf of Euroclear or
Clearstream, as applicable).



          Agent Members shall have no rights under this Indenture with respect to
any Global Security held on their behalf by the Depositary, or the Trustee as
its custodian, or under such Global Security, and the Depositary may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing contained herein shall prevent the
Company, the Trustee or any agent of the Company or Trustee from giving effect
to any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and the Agent Members, the
operation of customary practices governing the exercise of the rights of a
Holder of any Security. With respect to any Global Security deposited on
behalf of the subscribers for the Securities represented thereby with the
Trustee as custodian for the Depositary for credit to their respective accounts
(or to such other accounts as they may direct) at Euroclear or Clearstream, the
provisions of the “Operating Procedures of the Euroclear System” and the “Terms
and Conditions Governing Use of Euroclear” and the “Management Regulations” and
“Instructions to Participants” of Clearstream, respectively, shall be
applicable to the Global Securities.



          (b) The registered Holder of a Global Security may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.



          (c) A Global Security may not be transferred, in whole or in part, to any
Person other than the Depositary, and no such transfer to any such other Person
may be registered. Beneficial interests in a Global Security may be
transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 2.9 hereof.



          (d) If at any time:




     (1) the Depositary notifies the Company in writing
that it is no longer willing or able to continue to act as
Depositary for the Global Securities, or the Depositary
ceases to be a “clearing agency” registered under the
Exchange Act and a successor depositary for the Global
Securities is not appointed by the Company within 90 days
of such notice or cessation;




     (2) the Company, at its option, notifies the Trustee
in writing that it elects to cause the issuance of the
Physical Securities under this Indenture in exchange for
all or any part of the Securities represented by a Global
Security or Global Securities; or




     (3) an Event of Default has occurred and is continuing
and the Registrar has received a request from the
Depositary for the



26









 






issuance of Physical Securities in exchange for such
Global Security or Global Securities,


then the Depositary shall surrender such Global Security or Global Securities
to the Trustee for cancellation and the Company shall execute, and the Trustee,
upon receipt of an Officers’ Certificate and Company Order for the
authentication and delivery of Securities, shall authenticate and deliver in
exchange for such Global Security or Global Securities, Physical Securities in
an aggregate principal amount equal to the aggregate principal amount of such
Global Security or Global Securities. Such Physical Securities shall be
registered in such names as the Depositary shall identify in writing as the
beneficial owners of the Securities represented by such Global Security or
Global Securities (or any nominee thereof).




          (e) Notwithstanding the foregoing, in connection with any transfer of
beneficial interests in a Global Security to the beneficial owners thereof
pursuant to Section 2.8(d) hereof, the Registrar shall reflect on its books and
records the date and a decrease in the aggregate principal amount of such
Global Security in an amount equal to the aggregate principal amount of the
beneficial interest in such Global Security to be transferred.



          Section 2.9 [Reserved].



          Section 2.10 Holder Lists.



          The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with Section 312(a) of the TIA. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee prior to
or on each Interest Payment Date and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders relating to such
Interest Payment Date or request, as applicable.



          Section 2.11 Persons Deemed Owners.



          Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of the Security or the
payment of any Redemption Price or Repurchase Price in respect thereof and
Interest (including Contingent Interest) thereon, if any, for any purpose under
this Indenture, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.



          Section 2.12 Mutilated, Destroyed, Lost or Stolen Securities.



          If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new



27









 




Security of like tenor and aggregate principal amount and bearing a number
not contemporaneously outstanding.




          If there is delivered to the Company and the Trustee




     (1) evidence to their satisfaction of the destruction,
loss or theft of any Security, and




     (2) such security or indemnity as may be required by
them to save each of them and any agent of either of them
harmless, then, in the absence of actual notice to the
Company or the Trustee that such Security has been acquired
by a bona fide purchaser, the Company shall execute and,
upon request, the Trustee shall authenticate and deliver,
in lieu of any such destroyed, lost or stolen Security, a
new Security of like tenor and principal amount, and
bearing a number not contemporaneously outstanding.



          In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion, but
subject to any conversion rights, may, instead of issuing a new Security, pay
such Security, upon satisfaction of the condition set forth in the preceding
paragraph.



          Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.



          Every new Security issued pursuant to this Section 2.12 in lieu of any
destroyed, lost or stolen Security shall constitute an original contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and such new Security
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.



          The provisions of this Section 2.12 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.



          Section 2.13 Treasury Securities.



          In determining whether the Holders of the requisite principal amount of
Outstanding Securities are present at a meeting of Holders for quorum purposes
or have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company or any Affiliate of the
Company shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
determination as to the presence of a quorum or upon any such request, demand,
authorization, direction, notice, consent or waiver, only



28









 




such Securities of which a Responsible Officer of the Trustee has received
written notice and are so owned shall be so disregarded.




          Section 2.14 Temporary Securities.



          Pending the preparation of Securities in definitive form, the Company may
execute and the Trustee shall, upon written request of the Company,
authenticate and deliver temporary Securities (printed or lithographed).
Temporary Securities shall be issuable in any authorized denomination, and
substantially in the form of the Securities in definitive form but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every such temporary
Security shall be executed by the Company and authenticated by the Trustee upon
the same conditions and in substantially the same manner, and with the same
effect, as the Securities in definitive form. Without unreasonable delay, the
Company will execute and deliver to the Trustee Securities in definitive form
(other than in the case of Securities in global form) and thereupon any or all
temporary Securities (other than any such Securities in global form) may be
surrendered in exchange therefor, at each office or agency maintained by the
Company pursuant to Section 9.2 and the Trustee shall authenticate and deliver
in exchange for such temporary Securities an equal principal amount of
Securities in definitive form. Such exchange shall be made by the Company at
its own expense and without any charge therefor. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits and
subject to the same limitations under this Indenture as Securities in
definitive form authenticated and delivered hereunder.



          Section 2.15 Cancellation.



          All Securities surrendered for payment, redemption, purchase, conversion,
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee. All Securities so delivered
shall be canceled promptly by the Trustee, and no Securities shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Indenture. Upon written instructions of the Company, the Trustee shall dispose
of canceled Securities in accordance with its procedures for the disposition of
cancelled securities in effect as of the date of such disposition. If the
Company shall acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such
Securities unless the same are delivered to the Trustee for cancellation.



          Section 2.16 CUSIP Numbers.



          The Company in issuing the Securities may use “CUSIP” numbers (if then
generally in use), and the Trustee shall use CUSIP numbers in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice shall state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any such notice
and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not



29









 




be affected by any defect in or omission of such numbers. The Company
shall promptly notify the Trustee of any change in the CUSIP numbers.




          Section 2.17 Defaulted Interest.



          If the Company fails to make a payment of principal, Redemption Price,
Repurchase Price or Interest (including Contingent Interest) on any Debenture
when due and payable, it shall pay Interest (including Contingent Interest) on
such amounts (to the extent lawful), which shall be calculated using the
applicable Interest Rate (such amounts, the “Defaulted Interest”). The Company
may elect to pay such Defaulted Interest, plus any other Interest (including
Contingent Interest) payable on it, to the Persons who are Holders on which the
Interest (including Contingent Interest) is due on a subsequent special record
date. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Debenture. The Company
shall fix any such special record date and payment date for such payment. At
least 15 days before any such special record date, the Company shall mail to
Holders affected thereby a notice that states the special record date, the
Interest Payment Date and amount to be paid.



ARTICLE III




DISCHARGE OF INDENTURE




          Section 3.1 Discharge of Liability on Securities.



          When (i) the Company delivers to the Trustee all outstanding Securities
(other than Securities replaced pursuant to Section 2.12) for cancellation or
(ii) all outstanding Securities have become due and payable at their scheduled
maturity within one year or all outstanding Securities are scheduled for
redemption within one year and the Company deposits with the Trustee cash or,
in the event of a conversion pursuant to Article 12 (subject to the provisions
of Section 12.12), Common Stock and/or cash sufficient to pay all amounts due
and owing on all outstanding Securities on the date of their scheduled maturity
or the scheduled date of redemption (other than Securities replaced pursuant to
Section 2.12), and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to Section 5.8,
cease to be of further effect. The Trustee shall join in the execution of a
document prepared by the Company acknowledging satisfaction and discharge of
this Indenture on demand of the Company accompanied by an Officers’ Certificate
and Opinion of Counsel and at the cost and expense of the Company.



          Section 3.2 Repayment to the Company.



          The Trustee and the Paying Agent shall return to the Company upon written
request any money or securities held by them for the payment of any amount with
respect to the Securities that remains unclaimed for two years, subject to
applicable unclaimed property law. After return to the Company, Holders
entitled to the money or securities must look to the Company for payment as
general creditors unless an



30









 




applicable abandoned property law designates another person and the
Trustee and the Paying Agent shall have no further liability to the Holders
with respect to such money or securities for that period commencing after the
return thereof.




ARTICLE IV




DEFAULTS AND REMEDIES




          Section 4.1 Events of Default.



          An
“Event of Default”, wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):



          (a) the Company defaults in converting the Debentures into shares of
Common Stock and/or cash upon exercise of a Holder’s conversion right;



          (b) the Company defaults in the payment of the principal amount,
Redemption Price or Repurchase Price (each, a “Defaulted
Payment”) on any
Outstanding Debentures when the same becomes due and payable at its Stated
Maturity, upon redemption, repurchase, upon declaration, when due for purchase
by the Company or otherwise;



          (c) the Company defaults in the payment of an installment of Interest
(including Contingent Interest) on any Debenture when it becomes due and
payable and such default continues for a period of 30 days;



          (d) the Company fails to perform or observe any other term, covenant or
agreement contained in the Securities or this Indenture and the default
continues for a period of 60 days after written notice of such failure,
requiring the Company to remedy the same, shall have been given to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Outstanding Debentures;



          (e) the Company defaults under any indebtedness for money borrowed by the
Company, any Guarantor or any Subsidiary that is a Significant Subsidiary or
any group of two or more Subsidiaries that, taken as a whole, would constitute
a Significant Subsidiary, the aggregate outstanding principal amount of which
is in an amount in excess of $25.0 million, for a period of 30 days after
written notice to the Company by the Trustee or to the Company and the Trustee
by Holders of at least 25% in aggregate principal amount of the Outstanding
Debentures, which default (i) is caused the Company’s failure to pay when due
principal or interest on such indebtedness by the end of the applicable grace
period, if any, unless such indebtedness is discharged or (ii) results in the
acceleration of such indebtedness because of a default with respect to such
indebtedness without such indebtedness having been discharged or such
non-payment or acceleration having been cured, waived, rescinded or annulled;
and



31









 





          (f) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or any Guarantor, in an
involuntary case or proceeding under any applicable U.S. federal or state
bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or
order adjudging the Company or any Guarantor a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any Guarantor,
under any applicable U.S. federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any Guarantor or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days;



          (g) the commencement by the Company or any Guarantor of a voluntary case
or proceeding under any applicable U.S. federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Company or any Guarantor or any Subsidiary that is a Significant Subsidiary or
any group of two or more Subsidiaries that, taken as a whole, would constitute
a Significant Subsidiary, to the entry of a decree or order for relief in
respect of the Company or any Guarantor or any Subsidiary that is a Significant
Subsidiary or any group of two or more Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary, in an involuntary case or proceeding
under any applicable U.S. federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or any Guarantor, or the
filing by the Company or any Guarantor or any Subsidiary that is a Significant
Subsidiary or any group of two or more Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary, of a petition or answer or consent
seeking reorganization or relief under any applicable U.S. federal or state
law, or the consent by the Company or any Guarantor to the filing of such
petition or to the appointment of or the taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any Guarantor or of any substantial part of its property, or
the making by the Company or any Guarantor or any Subsidiary that is a
Significant Subsidiary or any group of two or more Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary, of an assignment for the
benefit of creditors, or the admission by the Company or any Guarantor or any
Subsidiary that is a Significant Subsidiary or any group of two or more
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary,
in writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company or any Guarantor or any
Subsidiary that is a Significant Subsidiary or any group of two or more
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary,
expressly in furtherance of any such action; and



          (h) except in accordance with Section 13.3 hereof, any Guarantee shall be
held in any judicial proceeding to be unenforceable or invalid.



          A Default under clause (d) or (e) above is not an Event of Default until
the Trustee notifies the Company, or the Holders of at least 25% of the
principal amount of



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the Debentures at the time outstanding notify the Company and the Trustee,
of the Default and the Company does not cure such Default (and such Default is
not waived) within the time specified in clause (d) or (e) above after actual
receipt of such notice. Any such notice must specify the Default, demand that
it be remedied and state that such notice is a “Notice of Default”:




          The Trustee shall, within 90 days of the occurrence of a Default, give to
the Holders of the Securities notice of all uncured Defaults known to it and
written notice of any event which with the giving of notice or the lapse of
time, or both, would become an Event of Default; provided, however, the Trustee
shall be protected in withholding such notice if it, in good faith, determines
that the withholding of such notice is in the best interest of such Holders,
except in the case of a Default in the payment of the Principal of or Interest
(including Contingent Interest) on, any of the Securities when due or in the
payment of any redemption or Repurchase Right.



          Section 4.2 Acceleration of Maturity; Rescission and Annulment.



          If an Event of Default with respect to Outstanding Debentures (other than
an Event of Default specified in Section 4.1(f) or 4.1(g) hereof) occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the Outstanding Debentures, by written notice to the Company, may
declare due and payable 100% of the principal amount of all Outstanding
Debentures, plus any accrued and unpaid Interest (including Contingent
Interest), to the date of payment. Upon a declaration of acceleration, such
principal amount, and accrued and unpaid Interest (including Contingent
Interest) to the date of payment shall be immediately due and payable.



          If an Event of Default specified in Section 4.1(f) and 4.1(g) occurs, the
principal, and accrued and unpaid Interest (including Contingent Interest) on
the Outstanding Debentures shall become and be immediately due and payable, and
thereupon the Trustee may, at its discretion, proceed to protect and enforce
the rights of the Holders at appropriate judicial proceedings.



          The Holders either (a) through notice to the Trustee of not less than a
majority of the principal amount of the Outstanding Debentures, or (b) by the
adoption of a resolution, at a meeting of Holders of the Outstanding Debentures
at which a quorum is present, by the Holders of at least a majority of the
principal amount of the Outstanding Debentures represented at such meeting,
may, on behalf of the Holders of all of the Debentures, rescind and annul an
acceleration and its consequences (including waiver of any defaults) if:




     (1) all existing Events of Default, other than the
nonpayment of a Defaulted Payment on the Debentures which
have become due solely because of the acceleration, have
been remedied, cured or waived, and



33









 






     (2) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction;



          provided, however, that in the event such declaration of acceleration has
been made based on the existence of an Event of Default under Section 4.1(f)
and the default with respect to Indebtedness for money borrowed which gave rise
to such Event of Default has been remedied, cured or waived, then, without any
further action by the Holders, such declaration of acceleration shall be
rescinded automatically and the consequences of such declaration shall be
annulled. No such rescission or annulment shall affect any subsequent Default
or impair any right consequent thereon.



          Section 4.3 Other Remedies.



          If an Event of Default with respect to Outstanding Debentures occurs and
is continuing, the Trustee may pursue any available remedy by proceeding at law
or in equity to collect the Defaulted Payment or Interest (including Contingent
Interest) due and payable on the Debentures or to enforce the performance of
any provision of the Securities.



          The Trustee may maintain a proceeding in which it may prosecute and
enforce all rights of action and claims under this Indenture or the Securities,
even if it does not possess any of the Securities or does not produce any of
them in the proceeding.



          Section 4.4 Waiver of Past Defaults.



          The Holders, either (a) through the written consent of not less than a
majority of the principal amount of the Outstanding Debentures, or (b) by the
adoption of a resolution, at a meeting of Holders of the Outstanding Debentures
at which a quorum is present, by the Holders of at least a majority of the
principal amount of the Outstanding Debentures represented at such meeting,
may, on behalf of the Holders of all of the Debentures, waive an existing
Default or Event of Default, except a Default or Event of Default:




     (1) set forth in Sections 4.1(a), (b) and (c),
provided, however, that subject to Section 4.7, the Holders
of a majority of the principal amount of the Outstanding
Debentures may rescind an acceleration and its
consequences, including any related payment default that
resulted from such acceleration; or




     (2) in respect of a covenant or provision hereof
which, under Section 7.2 hereof, cannot be modified or
amended without the consent of the Holders of each
Outstanding Debentures affected.


Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; provided, however, that no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.




34









 








          Section 4.5 Control by Majority.



          The Holders of a majority of the principal amount of the Outstanding
Debentures (or such lesser amount as shall have acted at a meeting pursuant to
the provisions of this Indenture) shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that:




     (1) conflicts with any law or with this Indenture;




     (2) the Trustee determines may be unduly prejudicial
to the rights of the Holders not joining therein; or








     (3) may expose the Trustee to personal liability.






The Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.




          Section 4.6 Limitation on Suit.



          No Holder of any Security shall have any right to pursue any remedy with
respect to this Indenture or the Securities (including, instituting any
proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver or trustee) unless:




     (1) such Holder has previously given written notice to
the Trustee of an Event of Default that is continuing;




     (2) the Holders of at least 25% of the principal
amount of the Outstanding Debentures shall have made
written request to the Trustee to pursue the remedy;




     (3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to it against any costs, expenses
and liabilities incurred in complying with such request;




     (4) the Trustee has failed to comply with the request
for 60 days after its receipt of such notice, request and
offer of indemnity; and




     (5) during such 60-day period, no direction
inconsistent with such written request has been given to
the Trustee by the Holders of a majority of the principal
amount of the Outstanding Debentures (or such amount as
shall have acted at a meeting pursuant to the provisions of
this Indenture);



35









 




provided, however, that no one or more of such Holders may use this Indenture
to prejudice the rights of another Holder or to obtain preference or priority
over another Holder.




          Section 4.7 Unconditional Rights of Holders to Receive Payment and to
Convert.



          Notwithstanding any other provision in this Indenture, the Holder of any
Debenture shall have the right, which is absolute and unconditional, to receive
payment of the principal amount, Redemption Price or Repurchase Price, and
Interest (including Contingent Interest) in respect of the Debentures held by
such Holder, on or after the respective due dates expressed in the Debenture or
any Redemption Date or Repurchase Date, and to convert the Debenture in
accordance with Article 12, or to bring suit for the enforcement of any such
payment on or after such respective dates or the right to convert, and such
rights shall not be impaired or affected adversely without the consent of such
Holder.



          Section 4.8 Collection of Indebtedness and Suits for Enforcement by the
Trustee.



          The Company covenants that if:




     (1) a Default or Event of Default is made in the
payment of Interest (including Contingent Interest) on any
Debenture when such Interest (including Contingent
Interest) becomes due and payable and such Default or Event
of Default continues for a period of 30 days; or




     (2) a Default or Event of Default is made in the
payment of the principal amount, Redemption Price or
Repurchase Price on any Debenture when the same becomes due
and payable at its Stated Maturity, upon redemption, upon
declaration when due for purchase by the Company or
otherwise,


then the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Debenture, the entire principal then due and payable (as
expressed therein or as a result of any acceleration effected pursuant to
Section 4.2 hereof) on such Debenture for any such amounts and, to the extent
legally enforceable, Interest (including Contingent Interest) on such
Debenture, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.




          If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company



36









 




and collect the monies adjudged or decreed to be payable in the manner
provided by law out of the property of the Company, wherever situated.




          If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.



          Section 4.9 Trustee May File Proofs of Claim.



          In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or the property of the Company or
its creditors, the Trustee (irrespective of whether the principal amount,
Redemption Price, Repurchase Price or Interest (including Contingent Interest)
in respect of the Debentures shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of any such amount) shall
be entitled and empowered, by intervention in such proceeding or otherwise:




     (1) to file and prove a claim for the whole amount of
the principal amount, Redemption Price, Repurchase Price or
Interest (including Contingent Interest) owing and unpaid
in respect of the Debentures and to file such other papers
or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the
Holders of Debentures allowed in such judicial proceeding
and




     (2) to collect and receive any monies, Common Stock or
other property payable or deliverable on any such claim and
to distribute the same,


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceedings is hereby authorized by
each Holder of Debentures to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders of Debentures, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 5.8.




          Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept, or adopt on behalf of any Holder of a
Debenture, any plan of reorganization, arrangement, adjustment or composition
affecting the Debentures



37









 




or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder of a Debenture in any such proceeding.




          Section 4.10 Restoration of Rights and Remedies.



          If the Trustee or any Holder of a Debenture has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Debentures shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.



          Section 4.11 Rights and Remedies Cumulative.



          Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 2.12, no right or remedy conferred in this Indenture upon or reserved
to the Trustee or to the Holders of Securities is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.



          Section 4.12 Delay or Omission Not Waiver.



          No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
any acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders of Securities may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders of Securities, as applicable.



          Section 4.13 Priorities.



          Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee:




     FIRST: to the payment of all amounts due to the Trustee under
Section 5.8;




     SECOND: to Holders for amounts due and unpaid on the
Securities for the principal amount, Redemption Price, Repurchase
Price or Interest (including Contingent Interest) as applicable,
ratably, without preference or priority of any kind, according to
such amounts due and payable on the Debentures; and




38










 





          THIRD: any remaining amounts shall be repaid to the Company.



          The Trustee may fix a special record date and payment date for any payment
to Holders pursuant to this Section 4.13. At least 15 days before such special
record date, the Trustee shall mail to each Holder and the Company a notice
that states the special record date, the payment date and the amount to be
paid.



          Section 4.14 Undertaking for Costs.



          All parties to this Indenture agree, and each Holder of any Debenture by
such Holder’s acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% of the principal amount of the
Outstanding Debentures, or to any suit instituted by any Holder of any
Debenture for the enforcement of (i) payments pursuant to Section 4.7, (ii)
repurchase rights in accordance with Article 11 or (iii) conversion rights in
accordance with Article 12. This Section 4.14 shall be in lieu of Section
315(e) of the TIA and such Section 315(e) is hereby expressly excluded from
this Indenture, as permitted by the TIA.



          Section 4.15 Waiver of Stay or Extension Laws.



          The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
to take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.



ARTICLE V




THE TRUSTEE




          Section 5.1 Certain Duties and Responsibilities.



          (a) Except during the continuance of an Event of Default,




     (1) The Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture or the TIA, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and



39









 






     (2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; provided, however, that in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates or opinions to
determine whether or not, on their face, they conform to
the requirements to this Indenture (but need not
investigate or confirm the accuracy of any facts stated
therein).



          (b) In case an Event of Default actually known to a Responsible Officer of
the Trustee has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own affairs.



          (c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:




     (1) This paragraph (c) shall not be construed to limit
the effect of paragraph (a) of this Section 5.1;




     (2) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and




     (3) The Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with a direction received by it of the
Holders of a majority of the principal amount of the
Outstanding Securities (or such lesser amount as shall have
acted at a meeting pursuant to the provisions of this
Indenture) relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture.



          (d) Whether or not herein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
5.1.



          (e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers.
The Trustee may refuse to



40









 




perform any duty or exercise any right or power unless it receives
indemnity reasonably satisfactory to it against any loss, liability, cost or
expense (including, without limitation, reasonable fees and expenses of
counsel).




          (f) The Trustee shall not be obligated to pay interest on any money or
other assets received by it unless otherwise agreed in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.



          (g) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally or by
agent or attorney at the sole cost of the Company and shall incur no liability
or additional liability of any kind by reason of such inquiry or investigation.



          (h) The Trustee shall not be deemed to have notice or actual knowledge of
any Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact a
Default is received by the Trustee pursuant to Section 13.2 hereof, and such
notice references the Securities and this Indenture.



          (i) The rights, privileges, protections, immunities and benefits given to
the Trustee hereunder, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each Paying Agent, authenticating agent,
Conversion Agent or Registrar acting hereunder.







          (j) The
Trustee may request that the Company or Fisher deliver an Officers’
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers’ Certificate may be signed by any person authorized to sign an
Officers’ Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.







          Section 5.2 Certain Rights of Trustee.



          Subject to the provisions of Section 5.1 hereof and subject to Section
315(a) through (d) of the TIA:




     (1) The Trustee may conclusively rely on any document
believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.



41









 






     (2) Before the Trustee acts or refrains from acting,
it may require an Officers’ Certificate or an Opinion of
Counsel, or both. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance
on the Officers’ Certificate or Opinion of Counsel.




     (3) The Trustee may act through attorneys and agents
and shall be responsible for the misconduct or negligence
of any attorney or agent appointed with due care.




     (4) The Trustee shall not be liable for any action
taken or omitted to be taken by it in good faith which it
believed to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture,
unless the Trustee’s conduct constitutes negligence.




     (5) The Trustee may consult with counsel of its
selection and the advice of such counsel as to matters of
law or legal interpretation shall be full and complete
authorization and protection in respect of any action
taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such
counsel.




     (6) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from
the Company shall be sufficient if signed by an Officer of
the Company.




     (7) The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a
duty unless so specified herein.



          Section 5.3 Individual Rights of Trustee.



          The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest (as such term is defined in Section 310(b) of the TIA), it must
eliminate such conflict within 90 days, apply to the Commission for permission
to continue as trustee (to the extent permitted under Section 310(b) of the
TIA) or resign. Any agent may do the same with like rights and duties. The
Trustee is also subject to Sections 5.11 and 5.12 hereof.



          Section 5.4 Money Held in Trust.



          Money held by the Trustee in trust hereunder shall not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise expressly agreed in writing with the Company.



42









 





          Section 5.5 Trustee’s Disclaimer.



          The recitals contained herein and in the Securities (except for those in
the certificate of authentication) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity, sufficiency or priority of
this Indenture or of the Securities. The Trustee shall not be accountable for
the use or application by the Company of Securities or the proceeds thereof.



          Section 5.6 Notice of Defaults.



          Within 90 days after the occurrence of any Default or Event of Default
hereunder of which the Trustee has received written notice, the Trustee shall
give notice to Holders, unless such Default or Event of Default shall have been
cured or waived; provided, however, that, except in the case of a Default or
Event of Default described in Sections 4.1(a) or (b), the Trustee shall be
protected in withholding such notice if and so long as Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in
the interest of the Holders. The proviso in the first sentence of this Section
5.6 shall be in lieu of the proviso to Section 315(b) of the TIA and such
proviso is hereby expressly excluded from this Indenture, as permitted by the
TIA. The Trustee shall not be deemed to have knowledge of a Default unless a
Responsible Officer of the Trustee has received written notice of such Default.



          Section 5.7 Reports by Trustee to Holders.



          The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required by Section 313 of the
TIA at the times and in the manner provided by the TIA. If required by Section
313(a) of the TIA, the Trustee shall, within 60 days after each September 15
following the date of this Indenture deliver to Holders a brief report, dated
as of such September 15, which complies with the provisions of such Section
313(a).







          A copy of each report at the time of its mailing to Holders shall be filed
with the Commission, if required, and each stock exchange, if any, on which the
Securities or the Common Stock are listed. The Company or Fisher, as
applicable, shall promptly notify
the Trustee when the Securities or the Common Stock become listed on any stock
exchange and of any delisting thereof.







          Section 5.8 Compensation and Indemnification.



          The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as agreed to in writing
by the Trustee and the Company (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) and the
Company covenants and agrees to pay or reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by or
on behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all agents and other persons not



43









 




regularly in its employ), except to the extent that any such expense,
disbursement or advance is due to its negligence or bad faith. When the
Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 4.1, the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any bankruptcy law.
The Company also covenants to indemnify the Trustee and its officers,
directors, employees and agents for, and to hold such Persons harmless against,
any loss, liability or expense incurred by them, arising out of or in
connection with the acceptance or administration of this Indenture or the
trusts hereunder or the performance of their duties hereunder, including the
costs and expenses of defending themselves against or investigating any claim
(whether asserted by the Company, a Guarantor, a Holder or any other Person) of
liability in the premises, except to the extent that any such loss, liability
or expense was due to the negligence or willful misconduct of such Persons.
The obligations of the Company under this Section 5.8 to compensate and
indemnify the Trustee and its officers, directors, employees and agents and to
pay or reimburse such Persons for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture or the earlier resignation or removal of the
Trustee. Such additional indebtedness shall be a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the Holders of particular
Securities, and the Securities are hereby subordinated to such senior claim.
“Trustee” for purposes of this Section 5.8 shall include any predecessor
Trustee, but the negligence or willful misconduct of any Trustee shall not
affect the indemnification of any other Trustee.




          Section 5.9 Replacement of Trustee.



          A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 5.9.



          The Trustee may resign and be discharged from the trust hereby created by
so notifying the Company in writing. The Holders of at least a majority of the
principal amount of Outstanding Debentures may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company must remove the
Trustee if:



          (i) the Trustee fails to comply with Section 5.11 hereof or Section
310 of the TIA;



          (ii) the Trustee becomes incapable of acting;



          (iii) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law; or



          (iv) a Custodian or public officer takes charge of the Trustee or
its property.



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          If the Trustee resigns or is removed or if a vacancy exists in the office
of the Trustee for any reason, the Company shall promptly appoint a successor
Trustee. The Trustee shall be entitled to payment of its fees and
reimbursement of its expenses while acting as Trustee. Within one year after
the successor Trustee takes office, the Holders of at least a majority of the
principal amount of Outstanding Debentures may appoint a successor Trustee to
replace the successor Trustee appointed by the Company.



          Any Holder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee if the
Trustee fails to comply with Section 5.11.



          If an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation or removal, the resigning or removed Trustee, as applicable, may
petition, at the expense of the Company, any court of competent jurisdiction
for the appointment of a successor Trustee.



          A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The Company shall issue a notice of the successor Trustee’s
succession to the Holders. Upon payment of its charges, the retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee, subject nevertheless to its lien, if any, provided for in Section 5.8
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
5.9 hereof, the Company’s obligations under Section 5.8 hereof shall continue
for the benefit of the retiring Trustee with respect to expenses, losses and
liabilities incurred by it prior to such replacement.



          Section 5.10 Successor Trustee by Merger, Etc.



          Subject to Section 5.11 hereof, if the Trustee consolidates with, merges
or converts into, or transfers all or substantially all of its corporate trust
business to, another corporation or national banking association, the successor
entity without any further act shall be the successor Trustee as to the
Securities.



          Section 5.11 Corporate Trustee Required; Eligibility.



          The Trustee shall at all times satisfy the requirements of Section
310(a)(1), (2) and (5) of the TIA. The Trustee shall at all times have (or, in
the case of a corporation included in a bank holding company system, the
related bank holding company shall at all times have), a combined capital and
surplus of at least $50 million as set forth in its (or its related bank
holding company’s) most recent published annual report of condition. The
Trustee is subject to Section 310(b) of the TIA.



          Section 5.12 Collection of Claims Against the Company.



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          The Trustee is subject to Section 311(a) of the TIA, excluding any
creditor relationship listed in Section 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the TIA to the
extent indicated therein.



ARTICLE VI




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




          Section 6.1 Company May Consolidate, Etc., Only on Certain Terms.



          The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:




     (1) in the event that the Company shall consolidate
with or merge into another Person or convey, transfer or
lease its properties and assets substantially as an
entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company
substantially as an entirety shall be a corporation,
limited liability company, partnership or trust organized
and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia;




     (2) in the event that the Company shall consolidate
with or merge into another Person or convey, transfer or
lease its properties and assets substantially as an
entirety to any Person, and the entity surviving such
transaction or transferee entity is not the Company, then
such surviving or transferee entity shall expressly assume,
by an indenture supplemental hereto, executed and delivered
to the Trustee, in form reasonably satisfactory to the
Trustee, the due and punctual payment of all and any
amounts when due on all the Securities and the performance
of every covenant of this Indenture and the Securities on
the part of the Company to be performed or observed and
shall have provided for conversion rights provided in
Article 12;




     (3) immediately after giving effect to such
transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and



46









 






     (4) the Company shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture, comply with this Article and that
all conditions precedent herein provided for relating to
such transaction have been complied with.



          Section 6.2 Successor Corporation Substituted.



          Upon any consolidation or merger by the Company with or into any other
corporation or any conveyance, transfer or lease of the properties and assets
of the Company substantially as an entirety to any Person, in accordance with
Section 6.1 hereof, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein. In the event of
any such conveyance or transfer, the Company (which term shall for this purpose
mean the Person named as the “Company” in the first paragraph of this Indenture
or any successor Person which shall theretofore become such in the manner
described in Section 6.1 hereof), except in the case of a lease to another
Person, shall be relieved of all obligations and covenants under this Indenture
and the Securities and may be dissolved and liquidated.



ARTICLE VII




AMENDMENTS, SUPPLEMENTS AND WAIVERS




          Section 7.1 Without Consent of Holders of Debentures.



          Without the consent of any Holders of Securities, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may amend this Indenture and the Securities to:



          (a) add to the covenants of the Company and the Guarantors for the benefit
of the Holders of Debentures;



          (b) surrender any right or power herein conferred upon the Company or the
Guarantors, as the case may be;



          (c) provide for conversion rights of Holders of Debentures if any
reclassification or change of Common Stock or any consolidation, merger or sale
of all or substantially all of Fisher’s assets occurs;







          (d)
provide for the assumption of the Company’s obligations or
Fisher’s obligations, as applicable, to the Holders
of Debentures in the case of a merger, consolidation, conveyance, transfer or
lease pursuant to Article 6 hereof or Section 12.4,
respectively;







47









 





          (e) reduce the Conversion Price; provided, however, that such reduction in
the Conversion Price shall not adversely affect the interests of the Holders of
Debentures (after taking into account tax and other consequences of such
reduction);



          (f) comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the TIA;



          (g) cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein or which is otherwise
defective, or to make any other provisions with respect to matters or questions
arising under this Indenture which the Company may deem necessary or desirable
and which shall not be inconsistent with the provisions of this Indenture;
provided, however, that such action pursuant to this clause (g) does not, in
the good faith opinion of the Board of Directors of the Company (as evidenced
by a Board Resolution) and the Trustee, adversely affect the interests of the
Holders of Securities in any material respect;



          (h) add Guarantees with respect to the Debentures; and



          (i) add or modify any other provisions herein with respect to matters or
questions arising hereunder which the Company and the Trustee may deem
necessary or desirable and which will not adversely affect the interests of the
Holders of Debentures.



          Section 7.2 With Consent of Holders of Debentures.



          Except as provided below in this Section 7.2, this Indenture or the
Securities may be amended, modified or supplemented, and noncompliance in any
particular instance with any provision of this Indenture or the Securities may
be waived, in each case (i) with the written consent of the Holders of at least
a majority of the principal amount of the Outstanding Debentures or (ii) by the
adoption of a resolution, at a meeting of Holders of the Outstanding Debentures
at which a quorum is present, by the Holders of a majority of the principal
amount of the Outstanding Debentures represented at such meeting.



          Without the written consent or the affirmative vote of each Holder of
Debentures affected thereby, an amendment or waiver under this Section 7.2 may
not:



          (a) change the Stated Maturity of the principal amount of, or any
installment of Interest (including Contingent Interest) on, any Security;



          (b) reduce the principal amount or Interest (including Contingent
Interest) on, Redemption Price or Repurchase Price of any Debenture;



          (c) impair or adversely affect the conversion rights as provided in
Article 12 of any Holders of Debentures;



          (d) impair or adversely affect the rights of any Holder of the Debentures
with respect to the Guarantees;



48









 





          (e) change the currency of any amount owed or owing under the Debentures
or any interest thereon from U.S. Dollars;



          (f) alter or otherwise modify the Interest Rate on any Debenture, or the
manner of calculation thereof, or extend time for payment of any amounts due
and payable (including Contingent Interest) to the Holders of the Debentures;



          (g) impair or adversely affect the right of any Holder to institute suit
for the enforcement of any payment in or with respect to any Debenture;



          (h) modify the obligation of the Company to maintain an office or agency
in The City of New York pursuant to Section 9.2;



          (i) impair or adversely affect the repurchase right of the Holders of the
Debentures as provided in Article 11 or the right of the Holders of the
Debentures to convert any Debenture as provided in Article 12;



          (j) modify the provisions of Article 10 in a manner adverse to the Holders
of the Debentures;



          (k) modify any of the provisions of this Section, or reduce the percentage
of voting interests required to waive a default, except to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Debenture affected thereby; or



          (l) reduce the requirements of Section 8.4 hereof for quorum or voting, or
reduce the percentage of the principal amount of the Outstanding Debentures the
consent of whose Holders is required for any such supplemental indenture or the
consent of whose Holders is required for any waiver provided for in this
Indenture.



          It shall not be necessary for any Act of Holders of Debentures under this
Section 7.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.



          Section 7.3 Compliance with Trust Indenture Act.



          Every amendment to this Indenture or the Securities shall be set forth in
a supplemental indenture that complies with the TIA as then in effect.



          Section 7.4 Revocation of Consents and Effect of Consents or Votes.



          Until an amendment, supplement or waiver becomes effective, a written
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Debenture or portion of a Debenture that evidences the
same debt as the consenting Holder’s Debenture, even if notation of the consent
is not made on any Debenture; provided, however, that unless a record date
shall have been established, any such Holder or subsequent Holder may revoke
the consent as to its Debenture or portion



49









 




of a Debenture if the Trustee receives written notice of revocation before
the date the amendment, supplement or waiver becomes effective.




          An amendment, supplement or waiver becomes effective on receipt by the
Trustee of written consents from or affirmative votes by, as applicable, the
Holders of the requisite percentage of the principal amount of the Outstanding
Debentures, and thereafter shall bind every Holder of Debentures; provided,
however, if the amendment, supplement or waiver makes a change described in any
of the clauses (a) through (l) of Section 7.2, the amendment, supplement or
waiver shall bind only each Holder of a Debenture which has consented to it or
voted for it, as applicable, and every subsequent Holder of a Debenture or
portion of a Debenture that evidences the same indebtedness as the Debenture of
the consenting or affirmatively voting Holder, as applicable.



          Section 7.5 Notation on or Exchange of Debentures.



          If an amendment, supplement or waiver changes the terms of a Debenture:



          (a) the Trustee may require the Holder of a Debenture to deliver such
Debenture to the Trustee, the Trustee may place an appropriate notation on the
Debenture about the changed terms and return it to the Holder and the Trustee
may place an appropriate notation on any Debenture thereafter authenticated; or



          (b) if the Company or the Trustee so determines, the Company in exchange
for the Debenture shall issue and the Trustee shall authenticate a new
Debenture that reflects the changed terms.



          Failure to make the appropriate notation or issue a new Debenture shall
not affect the validity and effect of such amendment, supplement or waiver.



          Section 7.6 Trustee to Sign Amendment, Etc.



          The Trustee shall sign any amendment authorized pursuant to this Article 7
if the Trustee reasonably determines the amendment does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If the Trustee
reasonably determines the amendment does adversely affect the rights, duties,
liabilities or immunities of the Trustee, the Trustee may but need not sign it.
In signing or refusing to sign any amendment hereunder, the Trustee shall be
entitled to receive and shall be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that such
amendment is authorized or permitted by this Indenture and that all conditions
precedent relating thereto have been complied with.



ARTICLE VIII




MEETING OF HOLDERS OF DEBENTURES




          Section 8.1 Purposes for Which Meetings May Be Called.



50









 





          A meeting of Holders of Debentures may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Debentures.



          Section 8.2 Call Notice and Place of Meetings.



          (a) The Trustee may at any time call a meeting of Holders of Debentures
for any purpose specified in Section 8.1, to be held at such time and at such
place in The City of New York. Notice of every meeting of Holders of
Debentures, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 14.2, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.



          (b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% of the principal amount of the Outstanding
Debentures shall have requested the Trustee to call a meeting of the Holders of
Debentures for any purpose specified in Section 8.1 hereof, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall
not thereafter proceed to cause the meeting to be held as provided herein, then
the Company or the Holders of Debentures in the amount specified, as
applicable, may determine the time and the place in The City of New York for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in paragraph (a) of this Section 8.2.



          Section 8.3 Persons Entitled to Vote at Meetings.



          To be entitled to vote at any meeting of Holders of Debentures, a Person
shall be (a) a Holder of one or more Outstanding Debentures, or (b) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one
or more Outstanding Debentures by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.



          Section 8.4 Quorum; Action.



          The Persons entitled to vote a majority of the principal amount of the
Outstanding Debentures shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Debentures, be dissolved. In
any other case, the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned



51









 




meeting shall be given as provided in Section 8.2(a), except that such
notice need be given only once and not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage of the principal
amount of Maturity of the Outstanding Debentures which shall constitute a
quorum.




          Subject to the foregoing, at the reconvening of any meeting adjourned for
a lack of a quorum, the Persons entitled to vote 25% of the principal amount of
the Outstanding Debentures at the time shall constitute a quorum for the taking
of any action set forth in the notice of the original meeting.



          At a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid, any resolution and all matters (except as limited by
Section 7.2) shall be effectively passed and decided if passed or decided by
the Persons entitled to vote not less than a majority of the principal amount
of Outstanding Debentures represented and voting at such meeting.



          Any resolution passed or decisions taken at any meeting of Holders of
Debentures duly held in accordance with this Section shall be binding on all
the Holders of Debentures, whether or not present or represented at the
meeting.



          Section 8.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings.



          (a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting
of Holders of Debentures in regard to proof of the holding of Debentures and of
the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Debentures shall
be proved in the manner specified in Section 14.4 hereof and the appointment of
any proxy shall be proved in the manner specified in Section 14.4 hereof. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in
Section 14.4 hereof or other proof.



          (b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman (which may be the Trustee) of the meeting, unless the meeting shall
have been called by the Company or by Holders of Debentures as provided in
Section 8.2(b), in which case the Company or the Holders of Debentures calling
the meeting, as applicable, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority of the principal amount of
the Outstanding Debentures represented at the meeting.



52









 





          (c) At any meeting, each Holder of a Debenture or proxy shall be entitled
to one vote for each $1,000 principal amount of Debentures held or represented
by him; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Debentures challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Debenture or proxy.



          (d) Any meeting of Holders of Debentures duly called pursuant to Section
8.2 at which a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority of the principal amount of the Outstanding
Debentures represented at the meeting, and the meeting may be held as so
adjourned without further notice.



          Section 8.6 Counting Votes and Recording Action of Meetings.



          The vote upon any resolution submitted to any meeting of Holders of
Debentures shall be by written ballots on which shall be subscribed the
signatures of the Holders of Debentures or of their representatives by proxy
and the principal amount and serial numbers of the Outstanding Debentures held
or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record, at least in duplicate, of the proceedings of each meeting
of Holders of Debentures shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
Persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in Section 8.2 and,
if applicable, Section 8.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.



ARTICLE IX




COVENANTS




          Section 9.1 Payment of Principal, Redemption Price, Repurchase Price and
Interest.



          The Company will duly and punctually pay the principal amount, Redemption
Price, Repurchase Price or Interest (including Contingent Interest) on the
Debentures when and if at any time any such foregoing amounts are due and
payable in accordance with the terms of the Debentures and this Indenture. The
Company will deposit or cause to be deposited with the Trustee as directed by
the Trustee, no later than the day of the Stated Maturity of any Debenture, the
date of any installment of Interest (including Contingent Interest) or any
other date such payment is otherwise due.



53









 





          Section 9.2 Maintenance of Offices or Agencies.



          The Company hereby appoints the Trustee’s Corporate Trust Office as its
office in the Borough of Manhattan, The City of New York, where Debentures may
be:



     (i) presented or surrendered for payment;



     (ii) surrendered for registration of transfer or exchange;



     (iii) surrendered for conversion;


and where notices and demands to or upon the Company or any Guarantor in
respect of the Debentures and this Indenture may be served.




          The Company will maintain in The City of New York, an office or agency
where Debentures may be presented or surrendered for payment, where Debentures
may be surrendered for registration of transfer or exchange, where Debentures
may be surrendered for conversion and where notices and demands to or upon the
Company or any Guarantor in respect of the Debentures and this Indenture may be
served. The Company will give prompt written notice to the Trustee, and notice
to the Holders in accordance with Section 14.2 hereof, of the appointment or
termination of any such agents and of the location and any change in the
location of any such office or agency.



          If at any time the Company shall fail to maintain any such required office
or agency in The City of New York, or shall fail to furnish the Trustee with
the address thereof, presentations and surrenders may be made at, and notices
and demands may be served on, the Corporate Trust Office of the Trustee.



          Section 9.3 Corporate Existence.



          Each of Fisher and, subject to Article 6 hereof, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and statutory) and franchises
(and in the case of the Company, franchises of each Subsidiary); provided,
however, that each of Fisher and the Company shall not be required to preserve
any such right or franchise if its Board of Directors shall determine in good
faith that the preservation thereof is no longer desirable in the conduct of
the business of it and its Subsidiaries as a whole and that the loss thereof is
not disadvantageous in any material respect to the Holders.



          Section 9.4 Reports.







          (a) Each of the Company and, as of the Effective Date (as defined in
Section 13.3 hereof), Fisher shall deliver to the Trustee within 15 days after it files them with the
Commission copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) which the Company
or Fisher, as applicable, is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act, or, if







54









 








the Company or Fisher is not required to file such
information, documents or reports pursuant to either of such Sections, then
such Person shall file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and
regulations; provided, however, neither the Company nor Fisher shall
be required to deliver to the Trustee any materials for which the
Company or Fisher has sought and received confidential treatment
by the Commission.








          (b) Each of the Company, Fisher and any other Guarantor also shall comply
with the other provisions of Section 314(a) of the TIA.



          (c) Delivery of the reports, information and documents described
paragraphs (a) and (b) of this Section 9.4 to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained herein, including the Company’s, Fisher’s and any other
Guarantor’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).



          Section 9.5 Compliance Certificate.



          The Company and, as of the Effective Date (as defined in Section 13.3
hereof), Fisher shall each deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company or Fisher, as applicable, an Officers’
Certificate, one of the signatories of which shall be the principal executive
officer, principal financial officer or principal accounting officer of the
Company or Fisher, as applicable, stating that in the course of the performance
by the signers of their duties as Officers of the Company or Fisher, as
applicable, they would normally have knowledge of any failure by the Company or
Fisher, as applicable, to comply with all conditions, or Default by the Company
or Fisher, as applicable, with respect to any covenants, under this Indenture,
and further stating whether or not they have knowledge of any such failure or
Default and, if so, specifying each such failure or Default and the nature
thereof. In the event an Officer of the Company or Fisher, as applicable,
comes to have actual knowledge of a Default, regardless of the date, the
Company or Fisher, as applicable, shall deliver an Officers’ Certificate to the
Trustee within five Business Days of obtaining such actual knowledge specifying
such Default, its status and what action the Company or Fisher, as applicable,
is taking or proposes to take with respect thereto.



          Section 9.6 Resale of Certain Shares of Common Stock.



          During the period of two years after the last date of original issuance of
any Debentures, the Company shall not, and shall not permit any of its
“affiliates” (as defined under Rule 144 under the Securities Act) to, resell
any shares of Common Stock



55









 




issuable upon conversion of the Debentures which constitute “restricted
securities” under Rule 144, that are acquired by any of them within the United
States or to “U.S. persons” (as defined in Regulation S) except pursuant to an
effective registration statement under the Securities Act or an applicable
exemption therefrom. The Trustee shall have no responsibility or liability in
respect of the Company’s performance of its agreement in the preceding
sentence.




          The provisions of this Section 9.6 shall apply to each Guarantor as well
as to the Company, and each reference in this Section to “the Company” shall,
insofar as this Section applies to a Guarantor, be deemed to refer to such
Guarantor.



          Section 9.7 Tax Treatment of Debentures.



          The Company agrees, and by acceptance of beneficial ownership interest in
the Debentures each beneficial holder of Debentures will be deemed to have
agreed, unless otherwise required by the Internal Revenue Service, for United
States federal income tax purposes (1) to treat the Debentures as indebtedness
that is subject to Treas. Reg. Sec. 1.1275-4 (the “Contingent Payment
Regulations”) and, for purposes of the Contingent Payment Regulations, to treat
the fair market value of any stock beneficially received by a beneficial holder
upon any conversion of the Debentures as a contingent payment and (2) to be
bound by the Company’s determination of the “comparable yield” and “projected
payment schedule,” within the meaning of the Contingent Payment Regulations,
with respect to the Debentures. A Holder of Debentures may obtain the amount
of original issue discount, issue date, yield to maturity, comparable yield and
projected payment schedule by submitting a written request for it to the
Company at the address specified in accordance with Section 14.2.



ARTICLE X




REDEMPTION OF DEBENTURES




          Section 10.1 Optional Redemption.



          (a) At any time on or after October 20, 2004, except for Debentures that
it is required to purchase pursuant to Section 11.1 or required to convert
pursuant to Section 12.1, the Company may, at its option, redeem the Debentures
in whole at any time or in part from time to time, on any date prior to the
Stated Maturity of such Debentures, upon notice as set forth in Section 10.4,
at the Redemption Price.



          (b) If the Company exercises its option to redeem the Debentures pursuant
to this Section 10.1, a Holder may nevertheless exercise its right to have its
Debentures purchased pursuant to Section 11.1, if applicable, and to convert
such Debentures pursuant to Article 12, in each case, until the close of
business two Business Days immediately preceding the Redemption Date.



          (c) The Company shall pay to the Holder of the Debentures called for
redemption (including those Debentures which are converted into Common Stock
after the date the notice of the redemption is mailed and prior to the
Redemption Date) any



56









 




Interest (including Contingent Interest) accrued but not paid to, but
excluding, the Redemption Date pursuant to Section 2.1(f); provided, however,
that if the Redemption Date is an Interest Payment Date, the Company shall pay
the Interest (including Contingent Interest) to the Holder of the Debentures at
the close of business on such Interest Payment Date.




          Section 10.2 Notice to Trustee.



          If the Company elects to redeem Debentures pursuant to the provisions of
Section 10.1 hereof (such election to be ordered by a Board Resolution), it
shall notify the Trustee at least 60 days prior to the intended Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee) of (i) such
intended Redemption Date, (ii) the principal amount of Debentures to be
redeemed and (iii) the CUSIP numbers of the Debentures to be redeemed.



          Section 10.3 Selection of Debentures to Be Redeemed.



          If fewer than all the Debentures are to be redeemed, the Trustee shall
select the particular Debentures to be redeemed from the Outstanding Debentures
by a method that complies with the requirements of any exchange on which the
Debentures are listed, or, if the Debentures are not listed on an exchange, on
a pro rata basis or by lot or in accordance with any other method the Trustee
considers fair and appropriate. The Trustee may select for redemption portions
of the principal amount of Debentures that have denominations larger than
$1,000.



          Debentures and portions thereof that the Trustee selects shall be in
principal amounts in integral multiples of $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Debentures called for redemption. The Trustee shall notify the Company
promptly of the Debentures or portions of Debentures to be redeemed.



          The Trustee shall promptly notify the Company and the Registrar in writing
of the Debentures selected for redemption and, in the case of any Debentures
selected for partial redemption, the principal amount thereof to be redeemed.



          If any Debenture selected for partial redemption is converted or elected
to be purchased in part before termination of the conversion right or
repurchase right with respect to the portion of the Debenture so selected, the
converted or purchased portion of such Debenture shall be deemed to be the
portion selected for redemption; provided, however, that the Holder of such
Debenture so converted or purchased and deemed redeemed shall not be entitled
to any additional interest payment as a result of such deemed redemption than
such Holder would have otherwise been entitled to receive upon conversion or
purchase of such Debenture subject to Section 2.1(f). Debentures which have
been converted or purchased during a selection of Debentures to be redeemed may
be treated by the Trustee as Outstanding for the purpose of such selection.



          For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Debentures shall relate, in the
case of any



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Debenture redeemed or to be redeemed only in part, to the portion of the
principal amount of such Debenture which has been or is to be redeemed.




          Section 10.4 Notice of Redemption.



          Notice of redemption shall be given in the manner provided in Section 14.2
to the Holders of Debentures to be redeemed. Such notice shall be given not
less than 20 nor more than 60 days prior to the intended Redemption Date.



          All notices of redemption shall state:




     (1) such intended Redemption Date;




     (2) the Redemption Price and Interest (including
Contingent Interest) accrued and unpaid to, but excluding,
the Redemption Date, if any;




     (3) if fewer than all the Outstanding Debentures are
to be redeemed, the principal amount of Debentures to be
redeemed and the principal amount of Debentures which will
be Outstanding after such partial redemption;




     (4) that on the Redemption Date, the Redemption Price
and Interest (including Contingent Interest) accrued and
unpaid to, but excluding, the Redemption Date, if any, will
become due and payable, and will cease to accrue, upon each
such Debenture to be redeemed;




     (5) the Conversion Price, the date on which the right
to convert the principal of the Debentures to be redeemed
will terminate and the places where such Debentures may be
surrendered for conversion;




     (6) the place or places where such Debentures are to
be surrendered for payment of the Redemption Price and
accrued and unpaid Interest (including Contingent
Interest);




     (7) the CUSIP number of the Debentures; and




     (8) whether the Company intends to satisfy its
obligation by delivering Common Stock, cash or a
combination of cash and Common Stock (and in such case, the
dollar amount per Debenture to be satisfied in cash) in the
event that Holders elect to convert their Debentures in
connection with the redemption.



          The notice given shall specify the last date on which exchanges or
transfers of Debentures may be made pursuant to Section 2.7, and shall specify
the serial numbers of Debentures and the portions thereof called for
redemption.



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          Notice of redemption of Debentures to be redeemed at the election of the
Company shall be given by the Company or, at the Company’s written request
delivered at least 20 days prior to the date of the mailing of such Notice
(unless a shorter period shall be acceptable to the Trustee), by the Trustee in
the name of and at the expense of the Company.



          Section 10.5 Effect of Notice of Redemption.



          Notice of redemption having been given as provided in Section 10.4 hereof,
the Debentures so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid Interest (including Contingent Interest)) such Debentures shall cease to
bear Interest (including Contingent Interest). Upon surrender of any such
Debenture for redemption in accordance with such notice, such Debenture shall
be paid by the Company at the Redemption Price; provided, however, the
installments of Interest (including Contingent Interest) on Debentures whose
Stated Maturity is prior to or on the Redemption Date shall be payable to the
Holders of such Debentures, or one or more Predecessor Securities, registered
as such on the relevant Regular Record Date.



          If any Debenture called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear Interest
(including Contingent Interest) from the Redemption Date at the Interest Rate.



          Section 10.6 Deposit and Payment of Redemption Price.



          Prior to or by 10:00 a.m. (New York City time) on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.6) an
amount of money in immediately available funds sufficient to pay the Redemption
Price, and accrued and unpaid Interest (including Contingent Interest) in
respect of all the Debentures to be redeemed on that Redemption Date from the
last Interest Payment Date to but not including the Redemption Date, other than
any Debentures called for redemption on that date which have been converted
prior to the date of such deposit, and accrued and unpaid Interest (including
Contingent Interest) on such Debentures. The Trustee and Paying Agent shall
then cause such funds to be paid to the Holders of the Debentures being
redeemed in accordance with this Article.



          If any Debenture delivered for redemption shall not be so redeemed by
payment to the Holders thereof on the Redemption Date, the principal amount of
such Debenture shall, until it is redeemed, bear Interest (including Contingent
Interest) on the Redemption Date to but not including the actual date of
redemption at the applicable Interest Rate, and each such Debenture shall
remain convertible into shares of Common Stock pursuant to Article 12 until
such Debenture shall have been so redeemed.




59










 





          If any Debenture called for redemption is converted, any money deposited
with the Trustee or with a Paying Agent or so segregated and held in trust for
the redemption of such Debenture shall (subject to any right of the Holder of
such Debenture or any Predecessor Security to receive Interest (including
Contingent Interest) as provided in Section 2.1(f)) be paid to the Company upon
request by the Company or, if then held by the Company, shall be discharged
from such trust.



          Section 10.7 Debentures Redeemed in Part.



          Any Debenture which is to be redeemed only in part shall be surrendered at
an office or agency of the Company designated for that purpose pursuant to
Section 9.2 hereof (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or the Holder’s
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Debenture without
service charge, a new Debenture of any authorized denomination as requested by
such Holder in principal amount equal to and in exchange for the unredeemed
portion of the Debenture so surrendered.



ARTICLE XI




REPURCHASE AT THE OPTION OF HOLDERS




          Section 11.1 Repurchase Rights.



          (a) Optional Put.



          On October 20, 2004, October 15, 2006, October 15, 2011 and October 15,
2016 (each, an “Optional Repurchase Date”), each Holder shall have the right
(each, an “Optional Repurchase Right”), at the Holder’s option, to require the
Company to repurchase, and upon the exercise of such right the Company shall
repurchase, all of such Holder’s Debentures not theretofore called for
redemption, or any portion of the principal amount thereof that is equal to
$1,000 or an integral multiple thereof as directed by such Holder pursuant to
Section 11.3 (provided that no single Debenture may be repurchased in part
unless the portion of the principal amount of such Debenture to be Outstanding
after such repurchase is equal to $1,000 or an integral multiple thereof), at a
purchase price in cash equal to 100% of the principal amount of the Debentures
to be repurchased plus accrued and unpaid Interest, including Contingent
Interest, if any, on such Optional Repurchase Date (the “Optional Repurchase
Price”).



          (b) Change of Control Put.



          In the event that a Change of Control shall occur, each Holder shall have
the right (each, a “Change of Control Repurchase Right” and, together with the
Optional Repurchase Right, each a “Repurchase Right”), at the Holder’s option,
but subject to the provisions of Section 11.2 hereof, to require the Company to
repurchase, and upon the exercise of such right the Company shall repurchase,
all of such Holder’s Debentures not theretofore called for redemption, or any
portion of the principal amount



60









 





thereof that is equal to $1,000 or an integral multiple thereof as
directed by such Holder pursuant to Section 11.3 (provided that no single
Debenture may be repurchased in part unless the portion of the principal amount
of such Debenture to be Outstanding after such repurchase is equal to $1,000 or
an integral multiple thereof), on the date (the “Change of Control Repurchase
Date” and, together with the Optional Repurchase Date, each a “Repurchase
Date”) that is a Business Day no earlier than 30 days nor later than 60 days
after the date of the Company Notice at a purchase price in cash equal to 100%
of the principal amount of the Debentures to be repurchased (the “Change of
Control Repurchase Price” and, together with the Optional Repurchase Price,
each a “Repurchase Price”), plus accrued and unpaid Interest (including
Contingent Interest) to, but excluding, the Change of Control Repurchase Date;
provided, however, that installments of Interest (including Contingent
Interest) on Debentures whose Stated Maturity is prior to or on the Change of
Control Repurchase Date shall be payable to the Holders of such Debentures, or
one or more Predecessor Securities, registered as such on the relevant Regular
Record Date according to terms and the provisions of Section 2.1 hereof.




          Section 11.2 Company Notice.



          In the case of an Optional Repurchase Right, no later than 20 Business
Days prior to each Optional Repurchase Date and in the case of a Change of
Control Repurchase Right, no later than 30 days after the occurrence of a
Change of Control, the Company shall mail a written notice (the “Company
Notice”) by first class mail to the Trustee and to each Holder (and to
beneficial owners as required by applicable law) pursuant to Section 14.2. The
Company Notice shall include a form of notice (the “Repurchase Notice”) to be
completed by the Holder and delivered to the Paying Agent pursuant to Section
11.3(b), and shall state the following:



      (i) that it is a Company Notice pursuant to this Section 11.2;



      (ii) in the case of a Change of Control Repurchase Right, the
events causing a Change of Control and the date of such Change of
Control;



      (iii) the procedures with which such Holder must comply to exercise
its right to have its Debentures purchased pursuant to Section 11.1(a)
or 11.1(b), including the date by which the completed Repurchase Notice
pursuant to Section 11.3(b) and the Debentures the Holder elects to have
repurchased pursuant to Section 11.1(a) or 11.1(b) must be delivered to
the Paying Agent in order to have such Debentures purchased by the
Company pursuant to Section 11.1(a) or 11.1(b), as the case may be, the
name and address of the Paying Agent and that the Debentures as to which
a Repurchase Notice has been given may be converted, if they are
otherwise convertible pursuant to Article 12, only if the completed and
delivered Repurchase Notice has been withdrawn in accordance with the
terms of the Indenture, the Holder’s conversion rights pursuant to
Article 12, and the Conversion Rate then in effect and any adjustments
thereto;



      (iv) the Repurchase Date and the Repurchase Price;



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      (v) that, unless the Company defaults in making payment of such
Repurchase Price, Interest (including Contingent Interest) on the
Debentures surrendered for purchase by the Company will cease to accrue
on and after Repurchase Date; and



      (vi) the CUSIP number of the Debentures.



          No failure by the Company to give the foregoing Company Notice shall limit
any Holder’s right to exercise its rights pursuant to Section 11.1(a) or
11.1(b) or affect the validity of the proceedings for the purchase of its
Debentures hereunder.



          Section 11.3 Delivery of Repurchase Notice; Forms of Repurchase Notice;
Withdrawal of Repurchase Notice.



          (a) Delivery of Repurchase Notice.



          The Company shall deliver to all Holders (and beneficial holders of the
Debentures) a form of Repurchase Notice, which with respect to Holders
repurchase rights set forth in Section 11.1(a) or 11.1(b), as the case may be,
shall be delivered to such Holders at least 20 Business Days prior to the
Repurchase Date and, as set forth in Section 11.2 shall be included in the
Company Notice; provided that the delivery of such form of Repurchase Notice to
the Holders shall be made in the Company’s name and at the Company’s expense
and the text of such form of Repurchase Notice, shall be prepared by the
Company pursuant to Section 11.2.



          (b) Form of Repurchase Notice.



          The form of Repurchase Notice shall provide instructions regarding
procedures with which holders must comply to exercise their rights pursuant to
Section 11.1 and the completion of the Repurchase Notice and also shall state:




     (1) that it is the Repurchase Notice pursuant to
Sections 11.2 and 11.3 of the Indenture and must be
completed by the Holder and delivered to the Paying Agent
(and any beneficial holder of securities), together with
the delivery of the Holder’s Debentures for which the
Holder will exercise its repurchase rights pursuant to
Section 11.1, for such Holder to receive the Repurchase
Price;




     (2) the name and address of the Paying Agent to, and
the date by, which the completed Repurchase Notice and
Debentures must be delivered in order for the Holder to
receive the applicable Repurchase Price;




     (3) the portion of the principal amount of the
Debentures which the Holder will deliver to be repurchased,
which portion must be in principal amounts of $1,000 or an
integral multiple thereof;



62









 






     (4) any other procedures then applicable that the
Holder must follow to exercise rights under Article 11 and
a brief description of those rights;




     (5) the Repurchase Date and the Repurchase Price;




     (6) the procedures with which such Holder must comply
to exercise its right to have its Debentures purchased
pursuant to Section 11.1, including the date by which the
completed Repurchase Notice pursuant to Section 11.3 and
the Debentures the Holder elects to have purchased pursuant
to Section 11.1 must be delivered to the Paying Agent in
order to have such Debentures purchased by the Company
pursuant to Section 11.1, the name and address of the
Paying Agent and that the Debentures as to which a
Repurchase Notice has been given may be converted, if they
are otherwise convertible pursuant to Article 12, only if
the completed and delivered Repurchase Notice has been
withdrawn in accordance with the terms of the Indenture,
the Holder’s conversion rights pursuant to Article 12, the
Conversion Rate then in effect and any adjustments thereto;




     (7) the Holder’s right to withdraw a completed and
delivered Repurchase Notice, the procedures for withdrawing
a Repurchase Notice, pursuant to clause (c) below and that
Debentures as to which a completed and delivered Repurchase
Notice may be converted, if they are convertible only in
accordance with Article 12, if the applicable completed and
delivered Repurchase Notice has been withdrawn;




     (8) that, unless the Company defaults in making
payment on Debentures for which a Repurchase Notice has
been submitted, Interest (including Contingent Interest) on
such Debentures will cease to accrue on the Repurchase
Date; and




     (9) the CUSIP number of the Debentures.



          (c) Withdrawal of Repurchase Notice.



          Notwithstanding anything herein to the contrary, any Holder which has
delivered a completed Repurchase Notice to the Paying Agent shall have the
right to withdraw such Repurchase Notice, as applicable, by delivery of a
written notice of withdrawal delivered to the office of the Paying Agent in
accordance with the Repurchase Notice at any time prior to the close of
business on the day immediately preceding the Repurchase Date specifying:




     (1) the certificate number, if any, of the Debenture
in respect of which such notice of withdrawal is being
submitted;



63









 






     (2) the principal amount of the Debenture with respect
to which such notice of withdrawal is being submitted; and




     (3) the principal amount, if any, of such Debenture
which remains subject to the original Repurchase Notice and
which has been or will be delivered for purchase by the
Company.



          (d) The Paying Agent shall promptly notify the Company of the receipt by
it of any Repurchase Notice or written notice of withdrawal thereof.



          Section 11.4 Exercise of Repurchase Rights.



          (a) To exercise an Optional Repurchase Right pursuant to Section 11.1(a),
a Holder must deliver to the Trustee at its offices no later than the close of
business on the third Business Day prior to the Optional Repurchase Date the
following:



       (i) a completed Repurchase Notice for Optional Repurchase Rights,
the form of which is contained in Exhibit C hereto; and



       (ii) the Debentures or cause such Debentures to be delivered
through the facilities of the Depositary, as applicable, with respect to
which the repurchase right is being exercised, with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of
transfer, in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing.



          (b) To exercise a Change of Control Repurchase Right pursuant to Section
11.1(b), a Holder must deliver to the Trustee at its offices on or prior to the
close of business on the Business Day prior to the Change of Control Repurchase
Date the following:



       (i) a completed Repurchase Notice for Change of Control Repurchase
Rights, the form of which is contained in Exhibit D hereto; and



       (ii) the Debentures or cause such Debentures to be delivered
through the facilities of the Depositary, as applicable, with respect to
which the repurchase right is being exercised, with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of
transfer, in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing.



          Section 11.5 Deposit and Payment of the Applicable Repurchase Price.



          (a) If a Holder has exercised its rights pursuant to Section 11.1(a) or
11.1(b) and has satisfied the conditions for the exercise of such rights in
accordance with Section 11.4(a) or 11.4(b), as the case may be, then the
Company shall, prior to 10:00 a.m. (New York City time) on the Business Day
following the applicable Repurchase



64









 





Date deposit with the Trustee or with the Paying Agent (or, if the Company
or a Subsidiary or an Affiliate of either of them is acting as the Paying
Agent, shall segregate and hold in trust as provided in Section 2.4) an amount
of money in immediately available funds if deposited on such Business Day
sufficient to pay the aggregate Repurchase Price of all the Debentures or
portions thereof which are to be purchased on such applicable Repurchase Date,
and the Trustee or Paying Agent, as applicable, shall pay the Holder the
Repurchase Price multiplied by the principal amount of Debentures for which
such rights were exercised on the applicable Repurchase Date.




          (b) There shall be no purchase of any Debenture pursuant to Section
11.1(a) or 11.1(b) if there has occurred (prior to, on or after, as applicable,
the giving, by the Holders of such Debenture, of the required Repurchase
Notice) and is continuing an Event of Default (other than a default in the
payment of the Repurchase Price with respect to such Debenture). The Paying
Agent will promptly return to the respective Holders thereof any Debenture (x)
with respect to which a Repurchase Notice has been withdrawn in compliance with
this Indenture, or (y) held by it during the continuance of an Event of Default
(other than a default in the payment of the Repurchase Price with respect to
such Securities) in which case, upon such return, the Repurchase Notice with
respect thereto shall be deemed to have been withdrawn.



          (c) If any Debenture delivered for purchase pursuant to Section 11.1(a) or
11.1(b) shall not be so paid on the Repurchase Date, the principal amount of
such Debenture shall, until it is paid, bear Interest (including Contingent
Interest) from the purchase date to but not including the date of actual
payment hereunder at the applicable Interest Rate, and each such Debenture
shall remain convertible pursuant to Article 12 until such Debenture shall have
been paid.



          Section 11.6 Effect of Delivery of Repurchase Notice and Purchase.



          (a) Upon receipt by the Paying Agent of a Repurchase Notice, the Holder of
the Debenture in respect of which such Repurchase Notice was delivered shall
(unless such Repurchase Notice is withdrawn pursuant to Section 11.3(c))
thereafter be entitled to receive solely the Repurchase Price with respect to
such Debenture, and, if applicable, any accrued and unpaid Interest (including
Contingent Interest) pursuant to Section 2.1(f). Debentures in respect of
which a Repurchase Notice has been delivered by the Holder thereof may not be
converted pursuant to Article 12 on or after the date of the delivery of such
Repurchase Notice unless such Repurchase Notice which has been completed and
delivered to the Paying Agent has first been validly withdrawn pursuant to
Section 11.3(c).



          (b) All Debentures delivered for purchase shall be canceled by the Trustee
or Paying Agent, as applicable.



          Section 11.7 Physical Securities Purchased in Part.



          Any Physical Security which is to be purchased only in part shall be
surrendered at the office of the Paying Agent (with, if the Company or the
Trustee so



65









 

`



requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder’s attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Debentures, without service charge, new Debentures, of any authorized
denomination as requested by such Holder in principal amount equal to, and in
exchange for, the portion of the principal amount of the Debentures so
surrendered which is not purchased.




          Section 11.8 Covenant to Comply With Securities Laws Upon Repurchase of
Securities.



          When complying with the provisions of this Article 11 (if such offer or
purchase constitutes an “issuer tender offer” for purposes of Rule 13e 4 (which
term, as used herein, includes any successor provision thereto) under the
Exchange Act at the time of such offer or purchase), the Company shall (a)
comply with Rule 13e 4 and Rule 14e 1 under the Exchange Act, (b) file the
related Schedule TO (or any successor schedule, form or report) under the
Exchange Act and (c) otherwise comply with all federal and state securities
laws so as to permit the rights and obligations under this Article 11 to be
exercised in the time and in the manner specified in this Article 11.



          Section 11.9 Repayment to the Company.



          The Trustee and the Paying Agent shall return to the Company upon written
request any cash that remains unclaimed, together with interest or dividends,
if any, thereon (subject to the provisions of Section 5.4), held by them for
the payment of the Repurchase Price; provided, however, that to the extent that
the aggregate amount of cash deposited by the Company pursuant to Section 11.5
exceeds the aggregate Repurchase Price of the Debentures or portions thereof
which the Company is obligated to purchase on the purchase date then, unless
otherwise agreed in writing with the Company, promptly after the Business Day
following such purchase date, the Trustee or Paying Agent, as applicable, shall
return any such excess to the Company together with interest or dividends, if
any, thereon, subject to the provisions of Section 5.4.



ARTICLE XII




CONVERSION OF SECURITIES




          Section 12.1 Conversion Privilege.







          (a) Subject to and upon compliance with the provisions of this Article, at
the option of the Holder, any Debenture or any portion of the principal amount
thereof which is an integral multiple of $1,000 may be converted at the
principal amount thereof, or of such portion thereof, into duly authorized,
fully paid and nonassessable shares of Common Stock (subject to
Section 12.12 hereof), at the Conversion Price,
determined as hereinafter provided, in effect at the time of conversion:








     (1) during any Conversion Period, if the Sale Price of
the Common Stock for at least 20 Trading Days in the 30
consecutive



66









 






Trading-Day period ending on the first day of the
Conversion Period was more than 120% of the Conversion
Price on that thirtieth Trading Day;








     (2) during the five Business Day period following any
five consecutive Trading-Day period in which the average of
the Trading Prices for the Debentures for that five
Trading-Day period was less than 97% of the average
Conversion Value for the Debentures during such period;
provided, however, if on the Conversion Date, the Sale
Price of the Common Stock is greater than the then current
Conversion Price and less than or equal to 120% of the then
current Conversion Price, and the Debentures are not
otherwise convertible, the Company may satisfy such
conversion, at its option, in cash, Common Stock or a
combination of cash and Common Stock with a value equal to
the principal amount of such Debenture to be converted (any
such Common Stock so utilized to satisfy such conversion
pursuant to this proviso will be valued at 100% of the
average of the Sale Prices of the Common Stock for the five
Trading Days ending on the third Trading Day immediately preceding the
Conversion Date);








     (3) during any period in which the credit ratings
assigned to the Debentures by Moody’s is lower than “B3” or
by Standard & Poor’s is lower than “B-”, (2) in which the
credit rating assigned to the Debentures is suspended or
withdrawn by either rating agency, or (3) in which neither
rating agency continues to rate the Debentures or provide
ratings services or coverage to the Company;




     (4) if the Company has called the Debentures for
redemption; or




     (5) upon the occurrence of any of the corporate
transactions specified in clause (b) of this Section 12.1.



          The Company shall determine on a daily basis whether the Debentures shall
be convertible as a result of the occurrence of an event specified in clause
(1) or, following a request by a Holder of Debentures delivered to the Company,
clause (2) above and, if the Debentures shall be so convertible, the Company
shall promptly deliver to the Trustee written notice thereof. Whenever the
Debentures shall become convertible pursuant to Section 12.1, the Company or,
at the Company’s written request, the Trustee in the name and at the expense of
the Company, shall notify the Holders of the event triggering such
convertibility in the manner provided in Section 14.2, and the Company shall
also publicly announce such information and publish it on the Company’s web
site. Any notice so given shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice.



67









 





          Notwithstanding anything to the contrary contained herein, the Conversion
Agent shall have no obligation to determine the Trading Price of the Debentures
pursuant to clause (2) above, unless the Company shall have requested that it
make such determination; and the Company shall have no obligation to make such
request unless so requested by a Holder. At such time as a written request is
made by a Holder, the Company shall instruct the Conversion Agent to determine
the Trading Price of the Debentures beginning on the next Trading Day and on
each successive Trading Day until the Trading Price of the Debentures is
greater than or equal to 97% of the average Conversion Value for five
consecutive Trading Days.



          (b) In addition, in the event that:




     (1) (A) Fisher distributes to all holders of its shares of Common Stock rights or warrants entitling them
(for a period expiring within 60 days of the Record Date
for such distribution) to subscribe for or purchase shares
of Common Stock, at a price per share less than the Sale
Price of the Common Stock on the Business Day immediately
preceding the announcement of such distribution, (B) Fisher
distributes to all holders of its shares of Common Stock,
cash or other assets, debt securities or rights or warrants
to purchase its securities, where the Fair Market Value (as
determined by the Board of Directors) of such distribution
per share of Common Stock exceeds 10% of the Sale Price of
a share of Common Stock on the Business Day immediately
preceding the date of declaration of such distribution, or
(C) a Change of Control occurs but Holders of Debentures do
not have the right to require the Company to purchase their
Debentures as a result of such Change of Control because
either (i) the Sale Price of the Common Stock for specified
periods (as described in the definition of Change of
Control) exceeds specified levels (as described in the
definition of Change of Control) or (ii) the consideration
received in such Change of Control consists of Capital
Stock that is freely tradeable and the Debentures become
convertible into that Capital Stock as specified in the
definition of Change of Control, then, in each case, the
Debentures may be surrendered for conversion at any time on
and after the date that the Company gives notice to the
Holders of such right, which shall be not less than 20 days
prior to the Ex-Dividend Time for such distribution, in the
case of (A) or (B), or within 30 days after the occurrence
of the Change of Control, in the case of (C), until the
earlier of the close of business on the Business Day
immediately preceding the Ex-Dividend Time or the date the
Company announces that such distribution will not take
place, in the case of (A) or (B), or the earlier of 30 days
after the Company’s delivery of the Repurchase Notice for
Change of Control Repurchase Rights or the date the Company
announces that the Change of Control will not take place,
in the case of (C), or



68









 







     (2) Fisher consolidates with or merges into another
corporation, or is a party to a binding share exchange
pursuant to which the shares of Common Stock would be
converted into cash, securities or other property as set
forth in Section 12.4 hereof, then the Debentures may be
surrendered for conversion at any time from and after the
date which is 15 days prior to the date announced by Fisher
as the anticipated effective time of such transaction until
15 days after the actual date of such transaction.



          The Conversion Rate, at any time, shall equal (A) $1,000 divided by the
Conversion Price at such time, rounded to three decimal places (rounded up if
the fourth decimal place thereof is 5 or more and otherwise rounded down).



          Section 12.2 Conversion Procedure; Conversion Price; Fractional Shares.







          (a) Upon conversion, the Company has the option, as set forth in Section
12.12, to deliver cash or a combination of cash and Common Stock, in lieu of
Common Stock in order to satisfy its Conversion Obligation; provided, however,
that the Company has the unilateral right, exercisable at any time, to deliver
an Officers’ Certificate to the Trustee and notice to the Holders, each stating
that it shall be thereafter obligated to satisfy certain of its Conversion
Obligation in cash. If the Company
chooses to settle the Conversion Obligation in Common Stock, Debentures shall
be convertible at the office of the Conversion Agent into fully paid and
nonassessable shares (calculated to the nearest 1/100th of a share) of Common
Stock and will be converted into shares of Common Stock at the Conversion Price
therefor. No payment or adjustment shall be made in respect of dividends on
the Common Stock or accrued interest on a converted Debenture, except as
described in Section 12.9 hereof. The Company shall not issue any fraction of
a share of Common Stock in connection with any conversion of Debentures, but
instead shall, subject to Section 12.3(h) hereof, make a cash payment
(calculated to the nearest cent) equal to such fraction multiplied by the Sale
Price of the Common Stock on the last Trading Day prior to the date of
conversion. Notwithstanding the foregoing, a Debenture in respect of which a
Holder has delivered a Company Notice exercising such Holder’s option to
require the Company to repurchase such Debenture may be converted only if such
notice of exercise is withdrawn in accordance with Section 11.3 hereof.







          (b) Before any Holder of a Debenture shall be entitled to convert the
same, such Holder shall, in the case of Debentures issued in global form,
comply with the procedures of the Depositary in effect at that time, and in the
case of definitive Debentures, surrender such Debenture, duly endorsed to the
Company or in blank, at the office of the Conversion Agent, and shall give
written notice to the Company at said office or place that such Holder elects
to convert the same and shall state in writing therein the principal amount of
Debentures to be converted and the name or names (with addresses) in which such
Holder wishes the certificate or certificates for Common Stock to be issued.



69









 





          Before any such conversion, a Holder also shall pay all funds required, if
any, relating to interest on the Debenture, as provided in Section 12.9, and
all taxes or duties, if any, as provided in Section 12.8.



          If more than one Debenture shall be surrendered for conversion at one time
by the same Holder, the number of full shares of Common Stock which shall be
deliverable upon conversion shall be computed on the basis of the aggregate
principal amount of the Debentures (or specified portions thereof to the extent
permitted thereby) so surrendered. Subject to Section 12.12 and the next
succeeding sentence, the Company will, as soon as practicable thereafter, issue
and deliver at said office or place to such Holder of a Debenture, or to such
Holder’s nominee or nominees, certificates for the number of full shares of
Common Stock to which such Holder shall be entitled as aforesaid, together,
subject to the last sentence of Section (a) above, with cash in lieu of any
fraction of a share to which such Holder would otherwise be entitled. The
Company shall not be required to deliver certificates for shares of Common
Stock while the stock transfer books for such stock or the security register
are duly closed for any purpose, but certificates for shares of Common Stock
shall be issued and delivered as soon as practicable after the opening of such
books or security register.







          (c) A Debenture shall be deemed to have been converted as of the close of
business on the date of the surrender of such Debenture for conversion as
provided above and the satisfaction of the other requirements for conversion,
and, if the Company chooses to settle the Conversion Obligation only in Common
Stock or a combination of cash and Common Stock, the person or persons entitled
to receive such Common Stock issuable upon such conversion shall be treated for
all purposes as the record Holder or Holders of such Common Stock as of the
close of business on such date.







          (d) In case any Debenture shall be surrendered for partial conversion, the
Company shall execute and the Trustee shall authenticate and deliver to or upon
the written order of the Holder of the Debenture so surrendered, without charge
to such Holder (subject to the provisions of Section 12.8 hereof), a new
Debenture in authorized denominations in an aggregate principal amount equal to
the unconverted portion of the surrendered Debenture.



          (e) For purposes of calculating the amount of the Common Stock to be
delivered pursuant to any conversion under this Article 12, the Common Stock
shall be valued at 100% of the average of the Sale Price for the Common Stock
for the five Trading Days ending on the third Trading Day immediately preceding
the applicable Conversion Date.



          Section 12.3 Adjustments of Conversion Price for Common Stock.



          The Conversion Price shall be adjusted from time to time as follows:



          (a) In case Fisher shall, at any time or from time to time while any of
the Debentures are outstanding, pay a dividend or make a distribution in shares
of Common Stock to all holders of its outstanding shares of Common Stock, then
the Conversion




70










 




Price in effect at the opening of business on the date following the
Record Date fixed for the determination of stockholders entitled to receive
such dividend or other distribution shall be reduced by multiplying such
Conversion Price by a fraction:





     (1) the numerator of which shall be the number of shares of Common Stock outstanding at the close of business
on the Record Date fixed for such determination; and




     (2) the denominator of which shall be the sum of such
number of shares and the total number of shares
constituting such dividend or other distribution.


Such reduction shall become effective immediately after the opening of business
on the day following the Record Date fixed for such determination. If any
dividend or distribution of the type described in this Section 12.3(a) is
declared but not so paid or made, the Conversion Price shall again be adjusted
to the Conversion Price which would then be in effect if such dividend or
distribution had not been declared.




          (b) In case Fisher shall, at any time or from time to time while any of
the Debentures are outstanding, subdivide its outstanding shares of Common
Stock into a greater number of shares of Common Stock, then the Conversion
Price in effect at the opening of business on the day following the day upon
which such subdivision becomes effective shall be proportionately reduced, and
conversely, in case Fisher shall, at any time or from time to time while any of
the Debentures are outstanding, combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock, then the Conversion Price in
effect at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased.



          Such reduction or increase, as the case may be, shall become effective
immediately after the opening of business on the day following the day upon
which such subdivision or combination becomes effective.



          (c) In case Fisher shall, at any time or from time to time while any of
the Debentures are outstanding, issue rights or warrants (other than any rights
or warrants referred to in Section 12.3(d)) to all holders of its shares of
Common Stock entitling them to subscribe for or purchase shares of Common Stock
(or securities convertible into shares of Common Stock) at a price per share
(or having a conversion price per share) less than the Sale Price on the
Business Day immediately preceding the date of the announcement of such
issuance (treating the conversion price per share of the securities convertible
into Common Stock as equal to (x) the sum of (i) the price for a unit of the
security convertible into Common Stock and (ii) any additional consideration
initially payable upon the conversion of such security into Common Stock
divided by (y) the number of shares of Common Stock initially underlying such
convertible security), then the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the Conversion Price in
effect at the opening of business on the date after such date of announcement
by a fraction:



71









 






     (1) the numerator of which shall be the number of shares of Common Stock outstanding on the close of business
on the date of announcement, plus the number of shares or
securities which the aggregate offering price of the total
number of shares or securities so offered for subscription
or purchase (or the aggregate conversion price of the
convertible securities so offered) would purchase at such
Sale Price of the Common Stock; and




     (2) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business
on the date of announcement, plus the total number of
additional shares of Common Stock so offered for
subscription or purchase (or into which the convertible
securities so offered are convertible).



          Such adjustment shall become effective immediately after the opening of
business on the day following the date of announcement of such issuance. To
the extent that shares of Common Stock (or securities convertible into shares
of Common Stock) are not delivered pursuant to such rights or warrants, upon
the expiration or termination of such rights or warrants, the Conversion Price
shall be readjusted to the Conversion Price which would then be in effect had
the adjustments made upon the issuance of such rights or warrants been made on
the basis of the delivery of only the number of shares of Common Stock (or
securities convertible into shares of Common Stock) actually delivered. In the
event that such rights or warrants are not so issued, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be in
effect if the date fixed for the determination of stockholders entitled to
receive such rights or warrants had not been fixed. In determining whether any
rights or warrants entitle the holders to subscribe for or purchase shares of
Common Stock at less than such Sale Price, and in determining the aggregate
offering price of such shares of Common Stock, there shall be taken into
account any consideration received for such rights or warrants, the value of
such consideration if other than cash, to be determined by the Board of
Directors.



          (d) In case Fisher shall, at any time or from time to time while any of
the Debentures are outstanding, by dividend or otherwise, distribute to all
holders of its shares of Common Stock (including any such distribution made in
connection with a consolidation or merger in which Fisher is the continuing
corporation and the Common Stock is not changed or exchanged), cash, shares of
its capital stock (other than any dividends or distributions to which Section
12.3(a) applies), evidences of its Indebtedness or other assets, including
securities, but excluding (i) any rights or warrants referred to in Section
12.3(c), (ii) dividends or distributions of stock, securities or other property
or assets (including cash) in connection with a reclassification, change,
merger, consolidation, statutory share exchange, combination, sale or
conveyance to which Section 12.4 applies and (iii) dividends and distributions
paid exclusively in cash (such capital stock, evidence of its indebtedness,
cash, other assets or securities being distributed hereinafter in this Section
12.3(d) called the “distributed assets”), then, in each such case, subject to
the third and fourth succeeding paragraphs and the last Section of this Section
12.3(d), the Conversion Price shall be reduced so that the same shall be



72









 




equal to the price determined by multiplying the Conversion Price in
effect immediately prior to the close of business on the Record Date with
respect to such distribution by a fraction:





     (1) the numerator of which shall be the Current Market
Price of the Common Stock, less the Fair Market Value on
such date of the portion of the distributed assets so
distributed applicable to one share of Common Stock
(determined on the basis of the number of shares of Common
Stock outstanding on the Record Date)(determined as
provided in Section 12.3(g)) on such date; and




     (2) the denominator of which shall be such Current
Market Price.


Such reduction shall become effective immediately prior to the opening of
business on the day following the Record Date for such distribution. In the
event that such dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such dividend or distribution had not been declared.




          If the Board of Directors determines the Fair Market Value of any
distribution for purposes of this Section 12.3(d) by reference to the actual or
when issued trading market for any distributed assets comprising all or part of
such distribution, it must in doing so consider the prices in such market over
the same period (the “Reference Period”) used in computing the Current Market
Price pursuant to Section 12.3(g) to the extent possible, unless the Board of
Directors determines in good faith that determining the Fair Market Value
during the Reference Period would not be in the best interest of the Holders.







          In the event any such distribution consists of shares of capital stock of,
or similar equity interests in, one or more Fisher Subsidiaries (a
“Spin-Off”), the Fair Market Value of the securities to be distributed shall
equal the average of the closing sale prices of such securities on the
principal securities market on which such securities are traded for the five
consecutive Trading Days commencing on and including the sixth day of trading
of those securities after the effectiveness of the Spin-Off, and the Current
Market Price shall be measured for the same period. In the event, however,
that an underwritten initial public offering of the securities in the Spin-Off
occurs simultaneously with the Spin-Off, Fair Market Value of the securities
distributed in the Spin-Off shall mean the initial public offering price of
such securities and the Current Market Price shall mean the Sale Price for the
Common Stock on the same Trading Day.







          Rights or warrants distributed by Fisher to all holders of its shares of
Common Stock entitling them to subscribe for or purchase shares of Fisher’s
capital stock (either initially or under certain circumstances), which rights
or warrants, until the occurrence of a specified event or events (“Trigger
Event”), (i) are deemed to be transferred with such shares of Common Stock,
(ii) are not exercisable and (iii) are also



73









 




issued in respect of future issuances of shares of Common Stock, shall be
deemed not to have been distributed for purposes of this Section 12.3(d) (and
no adjustment to the Conversion Price under this Section 12.3(d) will be
required) until the occurrence of the earliest Trigger Event. If such right or
warrant is subject to subsequent events, upon the occurrence of which such
right or warrant shall become exercisable to purchase different distributed
assets, evidences of indebtedness or other assets, or entitle the holder to
purchase a different number or amount of the foregoing or to purchase any of
the foregoing at a different purchase price, then the occurrence of each such
event shall be deemed to be the date of issuance and Record Date with respect
to a new right or warrant (and a termination or expiration of the existing
right or warrant without exercise by the holder thereof). In addition, in the
event of any distribution (or deemed distribution) of rights or warrants, or
any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto, that resulted in an adjustment to the
Conversion Price under this Section 12.3(d):





     (1) in the case of any such rights or warrants which shall
all have been redeemed or repurchased without exercise by any
holders thereof, the Conversion Price shall be readjusted upon
such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it
were a cash distribution, equal to the per share redemption or
repurchase price received by a holder of shares of Common Stock
with respect to such rights or warrants (assuming such holder had
retained such rights or warrants), made to all holders of shares
of Common Stock as of the date of such redemption or repurchase;
and




     (2) in the case of such rights or warrants which shall have
expired or been terminated without exercise, the Conversion Price
shall be readjusted as if such rights and warrants had never been
issued.



          For purposes of this Section 12.3(d) and Sections 12.3(a), 12.3(b) and
12.3(c), any dividend or distribution to which this Section 12.3(d) is
applicable that also includes (i) shares of Common Stock, (ii) a subdivision or
combination of shares of Common Stock to which Section 12.3(b) applies or (iii)
rights or warrants to subscribe for or purchase shares of Common Stock to which
Section 12.3(c) applies (or any combination thereof), shall be deemed instead
to be:



     (1) a dividend or distribution of the evidences of
indebtedness, assets, shares of capital stock, rights or warrants,
other than such shares of Common Stock, such subdivision or
combination or such rights or warrants to which Sections 12.3(a),
12.3(b) and 12.3(c) apply, respectively (and any Conversion Price
reduction required by this Section 12.3(d) with respect to such
dividend or distribution shall then be made), immediately followed
by



     (2) a dividend or distribution of such shares of Common
Stock, such subdivision or combination or such rights or warrants
(and any further Conversion Price reduction required by Sections
12.3(a), 12.3(b)



74









 





     and 12.3(c) with respect to such dividend or distribution
shall then be made), except:




          (A) the Record Date of such dividend or
distribution shall be substituted as (i) “the date
fixed for the determination of stockholders entitled
to receive such dividend or other distribution,”
“Record Date fixed for such determinations” and
“Record Date” within the meaning of Section 12.3(a),
(ii) “the day upon which such subdivision becomes
effective” and “the day upon which such combination
becomes effective” within the meaning of Section
12.3(b), and (iii) as “the date fixed for the
determination of stockholders entitled to receive
such rights or warrants,” “the Record Date fixed for
the determination of the stockholders entitled to
receive such rights or warrants” and such “Record
Date” within the meaning of Section 12.3(c); and




          (B) any shares of Common Stock included in such
dividend or distribution shall not be deemed
“outstanding at the close of business on the date
fixed for such determination” within the meaning of
Section 12.3(a) and any reduction or increase in the
number of shares of Common Stock resulting from such
subdivision or combination shall be disregarded in
connection with such dividend or distribution.



          In the event of any distribution referred to in this Section 12.3(d) in
which (1) the Fair Market Value (as determined by the Board of Directors) of
such distribution applicable to one share of Common Stock (determined as
provided above) equals or exceeds the average of the Sale Prices of the Common
Stock over the ten consecutive Trading Day period ending on the Record Date for
such distribution or (2) the average of the Sale Prices of the Common Stock
over the ten consecutive Trading Day period ending on the Record Date for such
distribution exceeds the Fair Market Value of such distribution by less than
$1.00, then, in each such case, in lieu of an adjustment to the Conversion
Price, adequate provision shall be made so that each Holder shall have the
right to receive upon conversion of a Debenture, in addition to shares of
Common Stock, the kind and amount of such distribution such Holder would have
received had such Holder converted such Debenture immediately prior to the
Record Date for determining the shareholders entitled to receive the
distribution.



          In the event of any distribution referred to in Section 12.3(c) or
12.3(d), where, in the case of a distribution described in Section 12.3(d), the
Fair Market Value of such distribution per share of Common Stock (as determined
by the Board of Directors) exceeds 10% of the Sale Price of a share of Common
Stock on the Business Day immediately preceding the declaration date for such
distribution, then, if such distribution would also trigger a conversion right
under Section 12.1(b) or the Debentures are




75










 




otherwise convertible pursuant to this Article 12, the Company will be
required to give notice to the Holders of Debentures at least 20 days prior to
the Ex-Dividend Time for the distribution and, upon the giving of notice, the
Debentures may be surrendered for conversion at any time on and after the date
that the Company gives notice to the Holders of such conversion right, until
the close of business on the Business Day prior to the Ex-Dividend Time or
Fisher announces that such distribution will not take place. No adjustment to
the Conversion Price or the ability of a Holder of a Debenture to convert will
be made if the Holder will otherwise participate in such distribution without
conversion.




          (e) In case Fisher shall, at any time or from time to time while any of
the Debentures are outstanding, by dividend or otherwise, distribute to all
holders of its shares of Common Stock, cash (excluding any cash that is
distributed upon a reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance to which Section 12.4 applies
or as part of a distribution referred to in Section 12.3(d)), in an aggregate
amount that, combined together with:




          (1) the aggregate amount of any other such distributions to
all holders of shares of Common Stock made exclusively in cash
within the 12 months preceding the date of payment of such
distribution, and in respect of which no adjustment pursuant to
this Section 12.3(e) has been made; and




          (2) the aggregate amount of any cash, plus the Fair Market
Value (as determined by the Board of Directors) of consideration
payable in respect of any tender offer by Fisher or any of its
Subsidiaries for all or any portion of the shares of Common Stock
concluded within the 12 months preceding the date of such
distribution, and in respect of which no adjustment pursuant to
Section 12.3(f) has been made;


exceeds 10% of the product of the Current Market Price of the Common Stock on
the Record Date with respect to such distribution, times the number of shares
of Common Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date, the Conversion Price
shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the close of
business on such Record Date by a fraction:





          (1) the numerator of which shall be equal to the Current
Market Price on the Record Date, less an amount equal to the
quotient of (x) the excess of such combined amount over such 10%
and (y) the number of shares of Common Stock outstanding on the
Record Date; and




          (2) the denominator of which shall be equal to the Current
Market Price on such date.


However, in the event that the then Fair Market Value (as so determined) of the
portion of cash and other securities, if any, so distributed applicable to one
share of Common


76









 






Stock is equal to or greater than the Current Market Price on the Record Date,
in lieu of the foregoing adjustment, adequate provision shall be made so that
each Holder shall have the right to receive upon conversion of a Debenture (or
any portion thereof) the amount of cash in excess of such 10% such Holder would
have received had such Holder converted such Debenture (or portion thereof)
immediately prior to such Record Date. In the event that such dividend or
distribution is not so paid or made, the Conversion Price shall again be
adjusted to be the Conversion Price that would then be in effect if such
dividend or distribution had not been declared.




          (f) In case a tender offer made by Fisher or any of its Subsidiaries for
all or any portion of the shares of Common Stock shall expire and such tender
offer (as amended upon the expiration thereof) shall require the payment to
stockholders (based on the acceptance (up to any maximum specified in the terms
of the tender offer) of shares tendered) of an aggregate consideration having a
Fair Market Value (as determined by the Board of Directors) that combined
together with:




               (1) the aggregate amount of the cash, plus the Fair
Market Value (as determined by the Board of Directors), as
of the expiration of such tender offer, of consideration
payable in respect of any other tender offers, by Fisher or
any of its Subsidiaries for all or any portion of the
shares of Common Stock expiring within the 12 months
preceding the expiration of such tender offer and in
respect of which no adjustment pursuant to this Section
12.3(f) has been made; and




               (2) the aggregate amount of any distributions to all
holders of shares of Common Stock made exclusively in cash
within 12 months preceding the expiration of such tender
offer and in respect of which no adjustment pursuant to
Section 12.3(e) has been made;


exceeds 10% of the product of the Current Market Price of the Common Stock as
of the last time (the “Expiration Time”) tenders could have been made pursuant
to such tender offer (as it may be amended), times the number of shares of
Common Stock outstanding (including any tendered shares) on the Expiration Time
(such excess, the “Excess Amount”), then, and in each such case, immediately
prior to the opening of business on the Business Day after the date of the
Expiration Time, the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the date of the Expiration Time
by a fraction:





          (1) the numerator of which shall be the (x) the product of
(i) the number of shares of Common Stock outstanding (including
any tendered shares) at the Expiration Time and (ii) the Current
Market Price of the Common Stock at the Expiration Time, less (y)
the Excess Amount; and



77









 






          (2) the denominator shall be the product of the number of
shares of Common Stock outstanding (including any tendered shares)
at the Expiration Time and the Current Market Price of the Common
Stock at the Expiration Time.



          Such reduction (if any) shall become effective immediately prior to the
opening of business on the day following the Expiration Time. In the event
that Fisher is obligated to purchase shares pursuant to any such tender offer,
but Fisher is permanently prevented by applicable law from effecting any such
purchases or all or a portion of such purchases are rescinded, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such (or such portion of the) tender offer had not been made. If the
application of this Section 12.3(f) to any tender offer would result in an
increase in the Conversion Price, no adjustment shall be made for such tender
offer under this Section 12.3(f).



          (g) For purposes of this Article 12, the following terms shall have the
meanings indicated:



          “Current Market Price” on any date means the average of the daily Sale
Prices per share of Common Stock for the ten consecutive Trading Days
immediately prior to such date; provided, however, that if:




               (1) the “ex” date (as hereinafter defined) for any
event (other than the issuance or distribution requiring
such computation) that requires an adjustment to the
Conversion Price pursuant to Section 12.3(a), (b), (c),
(d), (e) or (f) occurs during such ten consecutive Trading
Days, the Sale Price for each Trading Day prior to the “ex”
date for such other event shall be adjusted by dividing
such Sale Price by the same fraction by which the
Conversion Price is so required to be adjusted as a result
of such other event;




               (2) the “ex” date for any event (other than the
issuance or distribution requiring such computation) that
requires an adjustment to the Conversion Price pursuant to
Section 12.3(a), (b), (c), (d), (e) or (f) occurs on or
after the “ex” date for the issuance or distribution
requiring such computation and prior to the day in
question, the Sale Price for each Trading Day on and after
the “ex” date for such other event shall be adjusted by
dividing such Sale Price by the reciprocal of the fraction
by which the Conversion Price is so required to be adjusted
as a result of such other event; and




               (3) the “ex” date for the issuance or distribution
requiring such computation is prior to the day in question,
after taking into account any adjustment required pursuant
to clause (1) or (2) of this proviso, the Sale Price for
each Trading Day on or after such


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“ex” date shall be adjusted by adding thereto the
amount of any cash and the Fair Market Value (as determined
by the Board of Directors in a manner consistent with any
determination of such value for purposes of Section
12.3(d), (e) or (f)) of the evidences of Indebtedness,
shares of capital stock or assets being distributed
applicable to one share of Common Stock as of the close of
business on the day before such “ex” date.


For purposes of any computation under Section 12.3(f), if the “ex” date for any
event (other than the tender offer requiring such computation) that requires an
adjustment to the Conversion Price pursuant to Section 12.3(a), (b), (c), (d),
(e) or (f) occurs on or after the Expiration Time for the tender or exchange
offer requiring such computation and prior to the day in question, the Sale
Price for each Trading Day on and after the “ex” date for such other event
shall be adjusted by dividing such Sale Price by the reciprocal of the fraction
by which the Conversion Price is so required to be adjusted as a result of such
other event. For purposes of this paragraph, the term “ex” date, when used:





          (1) with respect to any issuance or distribution, means the
first date on which the shares of Common Stock trade regular way
on the relevant exchange or in the relevant market from which the
Sale Price was obtained without the right to receive such issuance
or distribution;




          (2) with respect to any subdivision or combination of shares
of Common Stock, means the first date on which the shares of
Common Stock trade regular way on such exchange or in such market
after the time at which such subdivision or combination becomes
effective; and




          (3) with respect to any tender or exchange offer, means the
first date on which the shares of Common Stock trade regular way
on such exchange or in such market after the Expiration Time of
such offer.


Notwithstanding the foregoing, whenever successive adjustments to the
Conversion Price are called for pursuant to this Section 12.3, such adjustments
shall be made to the Current Market Price as may be necessary or appropriate to
effectuate the intent of this Section 12.3 and to avoid unjust or inequitable
results as determined in good faith by the Board of Directors of Fisher.




          “Fair Market Value” shall mean the amount which a willing buyer would pay
a willing seller in an arm’s length transaction (as determined by the Board of
Directors of Fisher, whose determination shall be conclusive).



          “Record Date” shall mean, with respect to any dividend, distribution or
other transaction or event in which the holders of shares of Common Stock have
the right to receive any cash, securities or other property or in which the
shares of Common Stock (or other applicable security) is exchanged for or
converted into any combination of cash, securities or other property, the date
fixed for determination of stockholders entitled to



79








 







receive such cash, securities or other property (whether such date is
fixed by the Board of Directors of Fisher or by statute, contract or
otherwise).



          Unless otherwise specified, determinations required in this Article 12 to
be made by the Board of Directors shall be made by the Board of Directors of
Fisher.



          (h) The Company shall be entitled to make such additional reductions in
the Conversion Price, in addition to those required by Sections 12.3(a), (b),
(c), (d), (e) and (f), as shall be necessary in order that any dividend or
distribution of Common Stock, any subdivision, reclassification or combination
of shares of Common Stock or any issuance of rights or warrants referred to
above shall not be taxable to the holders of Common Stock for United States
federal income tax purposes.



          (i) To the extent permitted by applicable law, the Company may, from time
to time, reduce the Conversion Price by any amount for any period of time, if
such period is at least 20 days and the reduction is irrevocable during the
period. Whenever the Conversion Price is reduced pursuant to the preceding
sentence, the Company shall mail to the Trustee and each Holder at the address
of such Holder as it appears in the register of the Debentures maintained by
the Registrar, at least 15 days prior to the date the reduced Conversion Price
takes effect, a notice of the reduction stating the reduced Conversion Price
and the period during which it will be in effect.



          (j) In any case in which this Section 12.3 shall require that any
adjustment be made effective as of or retroactively immediately following a
Record Date, Fisher may elect to defer (but only for five Trading Days
following the filing of the statement referred to in Section 12.5) issuing to
the Holder of any Debenture converted after such Record Date the shares of
Common Stock issuable upon such conversion over and above the shares of Common
Stock issuable upon such conversion on the basis of the Conversion Price prior
to adjustment; provided, however, that Fisher shall deliver to such Holder a
due bill or other appropriate instrument evidencing such Holder’s right to
receive such additional shares upon the occurrence of the event requiring such
adjustment.



          (k) All calculations under this Section 12.3 shall be made to the nearest
cent or one hundredth of a share, with one half cent and 0.005 of a share,
respectively, being rounded upward. Notwithstanding any other provision of
this Section 12.3, the Company shall not be required to make any adjustment of
the Conversion Price unless such adjustment would require an increase or
decrease of at least 1% of such price. Any lesser adjustment shall be carried
forward and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment or adjustments so carried
forward, shall amount to an increase or decrease of at least 1% in such price.
Any adjustments under this Section 12.3 shall be made successively whenever an
event requiring such an adjustment occurs.



          (l) In the event that at any time, as a result of an adjustment made
pursuant to this Section 12.3, the Holder of any Debenture thereafter
surrendered for conversion shall become entitled to receive any shares of stock
of Fisher other than shares of




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Common Stock into which the Debentures originally were convertible, the
Conversion Price of such other shares so receivable upon conversion of any such
Debenture shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to Common Stock contained in subparagraphs
(a) through (k) of this Section 12.3, and the provisions of Sections 12.1, 12.2 and 12.4 through 12.9
with respect to the Common Stock shall apply on like or similar terms to any such other shares and the determination
of the Board of Directors as to any such adjustment shall be conclusive.



          (m) No adjustment shall be made pursuant to this Section 12.3 (i) if the
effect thereof would be to reduce the Conversion Price below the par value (if
any) of the Common Stock or (ii) if the Holders of the Debentures may
participate in the transaction that would otherwise give rise to an adjustment
pursuant to this Section 12.3.



          Section 12.4 Consolidation or Merger of Fisher.



          If any of the following events occurs, namely:




     (1) any reclassification or change of the outstanding
Common Stock (other than a change in par value, or from par
value to no par value, or from no par value to par value,
or as a result of a subdivision or combination);




     (2) any merger, consolidation, statutory share
exchange or combination of Fisher with another corporation
as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for
such Common Stock; or




     (3) any sale or conveyance of the properties and
assets of Fisher as, or substantially as, an entirety to
any other corporation as a result of which holders of
Common Stock shall be entitled to receive stock, securities
or other property or assets (including cash) with respect
to or in exchange for such Common Stock;



Fisher or the successor or purchasing corporation, as the case may be, shall
execute with the Trustee a supplemental indenture (which shall comply with the
Trust Indenture Act as in force at the date of execution of such supplemental
indenture, if such supplemental indenture is then required to so comply)
providing that such Debentures shall be convertible into the kind and amount of
shares of stock and other securities or property or assets (including cash)
which such Holder would have been entitled to receive upon such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance had such Debentures been converted into Common
Stock immediately prior to such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance
assuming such holder of Common Stock did not exercise its rights of election,
if any, as to the kind or amount of securities, cash or other property
receivable upon such merger, consolidation, statutory share exchange, sale



81









 








or conveyance (provided, that if the kind or amount of securities, cash or
other property receivable upon such merger, consolidation, statutory share
exchange, sale or conveyance is not the same for each share of Common Stock in
respect of which such rights of election shall not have been exercised
(“Non-Electing Share”), then for the purposes of this Section 12.4, the kind
and amount of securities, cash or other property receivable upon such merger,
consolidation, statutory share exchange, sale or conveyance for each
Non-Electing Share shall be deemed to be the kind and amount so receivable per
share by a plurality of the Non-Electing Shares). Such supplemental indenture
shall provide for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 12. If, in the
case of any such reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance, the stock or other securities
and assets receivable thereupon by a holder of Common Stock includes shares of
stock or other securities and assets of a corporation other than the successor
or purchasing corporation, as the case may be, in such reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or
conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Debentures as the Board of Directors shall
reasonably consider necessary by reason of the foregoing, including to the
extent practicable the provisions providing for the repurchase rights set forth
in Article 11 hereof.



          Fisher shall cause notice of the execution of such supplemental indenture
to be mailed to each Holder, at the address of such Holder as it appears on the
register of the Debentures maintained by the Registrar, within 20 days after
execution thereof. Failure to deliver such notice shall not affect the
legality or validity of such supplemental indenture.



          The above provisions of this Section 12.4 shall similarly apply to
successive reclassifications, mergers, consolidations, statutory share
exchanges, combinations, sales and conveyances.



          If this Section 12.4 applies to any event or occurrence, Section 12.3
shall not apply.



          Section 12.5 Notice of Adjustment.



          Whenever an adjustment in the Conversion Price with respect to the
Debentures is required:




     (1) Fisher shall forthwith place on file with the
Trustee and any Conversion Agent for such securities a
certificate of the Treasurer of Fisher, stating the
adjusted Conversion Price determined as provided herein and
setting forth in reasonable detail such facts as shall be
necessary to show the reason for and the manner of
computing such adjustment; and



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     (2) a notice stating that the Conversion Price has
been adjusted and setting forth the adjusted Conversion
Price shall forthwith be given by Fisher or, at Fisher’s
written request, by the Trustee in the name and at the
expense of Fisher, to each Holder in the manner provided in
Section 14.2. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder
receives such notice.



          Section 12.6 Notice in Certain Events.



          In case:




     (1) of a consolidation or merger to which Fisher is a
party and for which approval of any stockholders of Fisher
is required, or of the sale or conveyance to another Person
or entity or group of Persons or entities acting in concert
as a partnership, limited partnership, syndicate or other
group (within the meaning of Rule 13d 3 under the
Securities Exchange Act of 1934, as amended) of all or
substantially all of the property and assets of Fisher; or




     (2) of the voluntary or involuntary dissolution,
liquidation or winding up of Fisher; or




     (3) of any action triggering an adjustment of the
Conversion Price referred to in clauses (x) or (y) below;



then, in each case, Fisher shall cause to be filed with the Trustee and the
Conversion Agent, and shall cause to be given, to the Holders of the Debentures
in the manner provided in Section 14.2, at least 15 days prior to the
applicable date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of any distribution or grant of rights or
warrants triggering an adjustment to the Conversion Price pursuant to this
Article 12, or, if a record is not to be taken, the date as of which the
holders of record of Common Stock entitled to such distribution, rights or
warrants are to be determined, or (y) the date on which any reclassification,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding up
triggering an adjustment to the Conversion Price pursuant to this Article 12 is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their Common
Stock for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding
up.




     Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clause (1), (2) or (3) of
this Section 12.6.



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          Section 12.7 Fisher to Reserve Stock; Registration; Listing.



          (a) Fisher shall, in accordance with the laws of the State of Delaware, at
all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued shares of Common Stock, for the purpose of effecting
the conversion of the Debentures, such number of its duly authorized shares of
Common Stock as shall from time to time be sufficient to effect the conversion
of all Debentures then Outstanding into such Common Stock at any time (assuming
that, at the time of the computation of such number of shares or securities,
all such Debentures would be held by a single Holder); provided, however, that
nothing contained herein shall preclude Fisher from satisfying its obligations
in respect of the conversion of the Debentures by delivery of purchased shares
of Common Stock which are then held in the treasury of Fisher. Fisher
covenants that all shares of Common Stock that may be issued upon conversion of
Debentures will upon issue be fully paid and nonassessable and free from all
liens and charges and, except as provided in Section 12.8, taxes with respect
to the issue thereof.



          (b) If any shares of Common Stock which would be issuable upon conversion
of Debentures hereunder require registration with or approval of any
governmental authority before such shares or securities may be issued upon such
conversion, Fisher will in good faith and as expeditiously as possible endeavor
to cause such shares or securities to be duly registered or approved, as the
case may be. Fisher further covenants that so long as the Common Stock shall
be listed on the New York Stock Exchange, Fisher will, if permitted by the
rules of such exchange, list and keep listed all Common Stock issuable upon
conversion of the Debentures, and Fisher will endeavor to list the shares of
Common Stock required to be delivered upon conversion of the Debentures prior
to such delivery upon any other national securities exchange upon which the
outstanding Common Stock is listed at the time of such delivery.



          Section 12.8 Taxes on Conversion.



          The issue of stock certificates on conversion of Debentures shall be made
without charge to the converting Holder for any documentary, stamp or similar
issue or transfer taxes in respect of the issue thereof, and Fisher shall pay
any and all documentary, stamp or similar issue or transfer taxes that may be
payable in respect of the issue or delivery of shares of Common Stock on
conversion of Debentures pursuant hereto. Fisher shall not, however, be
required to pay any such tax which may be payable in respect of any transfer
involved in the issue or delivery of shares of Common Stock or the portion, if
any, of the Debentures which are not so converted in a name other than that in
which the Debentures so converted were registered, and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to Fisher the amount of such tax or has established to the satisfaction of
Fisher that such tax has been paid.



          Section 12.9 Conversion After Record Date.



          Except as provided below, if any Debentures are surrendered for conversion
on any day other than an Interest Payment Date, the Holder of such Debentures
shall not be entitled to receive any Interest (including Contingent Interest)



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that has accrued on such Debentures since the prior Interest Payment Date.
By delivery to the Holder of the number of shares of Common Stock or other
consideration issuable upon conversion in accordance with this Article 12, any
accrued and unpaid Interest (including Contingent Interest) on such Debentures
will be deemed to have been paid in full.



          If any Debentures are surrendered for conversion subsequent to the Record
Date preceding an Interest Payment Date but on or prior to such Interest
Payment Date, the Holder of such Debentures at the close of business on such
Record Date shall receive the Interest (including Contingent Interest) payable
on such Debentures on such Interest Payment Date notwithstanding the conversion
thereof. Debentures surrendered for conversion during the period from the
close of business on any Record Date preceding any Interest Payment Date to the
opening of business on such Interest Payment Date shall (except in the case of
Debentures which have been called for redemption on a Redemption Date within
such period) be accompanied by payment by Holders, for the account of the
Company, in New York Clearing House funds or other funds of an amount equal to
the Interest (including Contingent Interest) payable on such Interest Payment
Date on the Debentures being surrendered for conversion. Except as provided in
this Section 12.9, no adjustments in respect of payments of Interest (including
Contingent Interest) on Debentures surrendered for conversion or any dividends
or distributions or interest on the Common Stock issued upon conversion shall
be made upon the conversion of any Debentures.



          Section 12.10 Determinations Final.



          Any determination that Fisher, the Company or their respective Boards of
Directors must make pursuant to this Article 12 shall be conclusive if made in
good faith and in accordance with the provisions of this Article 12, absent
manifest error, and set forth in a Board Resolution.



          Section 12.11 Responsibility of Trustee for Conversion Provisions.



          The Trustee has no duty to determine when an adjustment under this Article
12 should be made, how it should be made or what it should be. The Trustee
makes no representation as to the validity or value of any securities or assets
issued upon conversion of Debentures. The Trustee shall not be responsible for
any failure of the Company or Fisher to comply with this Article 12. Each
Conversion Agent other than the Company or Fisher shall have the same
protection under this Section 12.11 as the Trustee.



          The rights, privileges, protections, immunities and benefits given to the
Trustee under this Indenture including, without limitation, its rights to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each Paying Agent or Conversion Agent acting
hereunder.



85









 





          Section 12.12 Payment of Cash in Lieu of Common Stock.







          If a Holder elects to convert all or any portion of a Debenture into
shares of Common Stock as set forth in Section 12.1 and delivers an irrevocable
conversion notice, together, if the Debentures are in certificated form, with
the certificated Debenture, as set forth in Section 12.2, the Company may
choose to satisfy all or any portion of its Conversion Obligation in cash or a
combination of cash and Common Stock; provided, however, that the Company has
the unilateral right, exercisable at any time, to deliver an Officers’
Certificate to the Trustee and notice to the Holders, each stating that it
shall be thereafter obligated to satisfy certain of its Conversion Obligation
in cash. Within two Trading Days
following the Conversion Date, the Company will notify such Holder through the
Conversion Agent of the Company’s election to deliver Common Stock or to pay
cash in lieu of delivery of some or all of the shares of Common Stock and, if
applicable, the dollar amount per $1,000 principal amount of Debentures to be
satisfied in cash (which must be expressed either as 100% of the Conversion
Obligation or as a fixed dollar amount) (such amount of cash, the “Cash
Amount”) unless the Company has previously informed Holders of its election in
connection with an optional redemption of Debentures in accordance with Section
10.4 of this Indenture. Settlement amounts will be computed as follows:







          (a) If the Company elects to satisfy the entire Conversion Obligation in
cash, the Company will deliver to such Holder cash in an amount equal to the
product of:




     (1) a number equal to (x) the aggregate principal
amount of Debentures to be converted, divided by (y) the
then applicable Conversion Price; and




     (2) the average Sale Price of the Common Stock during
the Cash Settlement Averaging Period; and



          (b) if the Company elects to satisfy a fixed amount (but not all) of the
Conversion Obligation in cash, the Company will deliver to such Holder, per
$1,000 principal amount of Debentures converted:




     (1) the Cash Amount; and




     (2) a number of shares of Common Stock equal to the
sum, for each Trading Day of the Cash Settlement Averaging
Period, of the greater of (i) zero and (ii) a number of shares of Common Stock equal to a fraction:




          (A) the numerator of which equals the (x) the
product of the Sale Price of the Common Stock on
such Trading Day multiplied by the Conversion Rate
minus (y) the Cash Amount; and



86









 






          (B) the denominator of which equals the product
of the Sale Price of Common Stock on such Trading
Day multiplied by the number of Trading Days in the
Cash Settlement Averaging Period;



provided, however, that the Company will pay cash in lieu of fractional shares
of Common Stock in accordance with Section 12.2.



          Section 12.13 Unconditional Right of Holders to Convert.



          Notwithstanding any other provision in this Indenture, the Holder of any
Debenture shall have the right, which is absolute and unconditional, to convert
its Debenture in accordance with this Article 12 and to bring an action for the
enforcement of any such right to convert, and such rights shall not be impaired
or affected without the consent of such Holder.



ARTICLE XIII




GUARANTEES




          Section 13.1 Future Subsidiary Guarantees.



          (a) After the date of this Indenture, the Company shall cause each
Subsidiary (including any newly created or acquired Subsidiary) of the Company
which becomes a guarantor under the Credit Agreement to promptly execute and
deliver to the Trustee a Guarantee substantially in the form of the
Supplemental Indenture attached as Exhibit F hereto pursuant to which such
Subsidiary shall unconditionally guarantee, on a joint and several basis, the
full and prompt payment of the principal and Interest (including Contingent
Interest), if any, with respect to the Debentures.



          Section 13.2 Releases.



          Upon the designation of any of the Guarantors (other than Fisher) as an
Excluded Subsidiary, such Guarantor shall be released and relieved of its
obligations under this Indenture. Upon delivery by the Company to the Trustee
of an Officers’ Certificate and an Opinion of Counsel to the effect that such
designation of such Guarantor as an Excluded Subsidiary was made by the Company
in accordance with the provisions of this Indenture, the Trustee shall execute
any documents reasonably required in order to evidence the release of such
Guarantor from its obligations under its Guarantee. The Guarantors not released
from their obligations under the Guarantees shall remain liable for the full
amount of principal of and Interest (including Contingent Interest) on the
Debentures and for the other obligations of any of the Guarantors under this
Indenture.



          Section 13.3 Fisher Guarantee.



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          (a) Upon the earlier of (1) the date on which the obligation of the
Company to file periodic reports with the Commission pursuant to Section 13 or
15(d) of the Exchange Act is terminated or suspended and (2) February 23, 2010
(such earlier date, the “Effective Date”), Fisher hereby agrees as follows:




     (1) Fisher unconditionally guarantees to each Holder
of a Debenture authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns,
regardless of the validity and enforceability of the
Indenture, the Securities or the Obligations of the Company
under this Indenture or the Securities, that:








          (A) the principal of, and Interest (including
Contingent Interest) on the Debentures will be
promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and
interest on the overdue principal of, Interest
(including Contingent Interest) on the Debentures,
to the extent lawful, and all other Obligations of
the Company, including the Cash Amount, to the Holders or the Trustee thereunder
or under this Indenture will be promptly paid in
full, all in accordance with the terms thereof; and








          (B) in case of any extension of time for
payment or renewal of any Debentures or any of such
other Obligations, that the same will be promptly
paid in full when due in accordance with the terms
of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.




     (2) Notwithstanding the foregoing, in the event that
the Guarantee set forth in paragraph (a)(1) of this Section
13.3 (the “Fisher Guarantee”) would constitute or result in
a violation of any applicable fraudulent conveyance or
similar law of any relevant jurisdiction, the liability of
Fisher under this Indenture shall be reduced to the maximum
amount permissible under such fraudulent conveyance or
similar law.



          (b) Execution and Delivery of Fisher Guarantee.




     (1) To evidence the Fisher Guarantee, Fisher hereby
agrees that, on the Effective Date, a notation of such
Fisher Guarantee shall be endorsed by an officer of Fisher
on each Debenture authenticated and delivered by the
Trustee on and after the date hereof, which Fisher
Guarantee will be effective as of the Effective Date.



88









 










     (2) Notwithstanding the foregoing, Fisher hereby
agrees that the Fisher Guarantee shall be effective as of the
Effective Date, and thereafter remain in full force
and effect notwithstanding any failure to endorse on each
Debenture a notation of such Fisher Guarantee.








     (3) If an Officer who endorses the notation of the
Fisher Guarantee on any Debenture no longer holds that
office at the time the Trustee authenticates the Debenture
on which the Fisher Guarantee is endorsed, the Fisher
Guarantee shall be valid nevertheless.




     (4) The delivery of any Debenture by the Trustee,
after the authentication thereof under the Indenture, shall
constitute due delivery of the Fisher Guarantee set forth
in this Indenture on behalf of Fisher as of the Effective
Date.




     (5) Fisher hereby agrees that its obligations
hereunder shall be unconditional, regardless of the
validity, regularity or enforceability of the Securities or
the Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder of the Debentures
with respect to any provisions of the Securities or the
Indenture, the recovery of any judgment against the
Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.




     (6) Fisher hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right
to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that the
Fisher Guarantee made pursuant to this Indenture will not
be discharged except by complete performance of the
Obligations contained in the Securities and the Indenture.




     (7) If any Holder or the Trustee is required by any
court or otherwise to return to the Company or the
Guarantors, or any Custodian, Trustee, liquidator or other
similar official acting in relation to either the Company
or any Guarantor, any amount paid by any of them to the
Trustee or such Holder, the Fisher Guarantee made pursuant
to this Indenture, to the extent theretofore discharged,
shall be reinstated in full force and effect.




     (8) Fisher hereby agrees that it shall not be entitled
to any right of subrogation in relation to the Holders in
respect of any obligations guaranteed hereby until payment
in full of all obligations guaranteed hereby. Fisher
further agrees that, as



89









 






     between Fisher and the other Guarantors, if any, on
the one hand, and the Holders and the Trustee, on the other
hand:




     (A) the maturity of the Obligations guaranteed
hereby may be accelerated as provided in Article 4
of the Indenture for the purposes of the Fisher
Guarantee made pursuant to this Indenture,
notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect
of the obligations guaranteed hereby; and




     (B) in the event of any declaration of
acceleration of such Obligations as provided in
Article 4 of the Indenture, such Obligations
(whether or not due and payable) shall forthwith
become due and payable by Fisher for the purpose of
the Fisher Guarantee made pursuant to this
Indenture.







          (c) Fisher
shall have the right to seek contribution from any other non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders or the Trustee under the Guarantees made pursuant to this
Indenture.







          (d) No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of Fisher, as such, shall
have any liability for any obligations of the Company or any Guarantor under
the Debentures, any Guarantees, this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
the Debentures by accepting a Debentures waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Debentures. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.



ARTICLE XIV




OTHER PROVISIONS OF GENERAL APPLICATION




          Section 14.1 Trust Indenture Act Controls.



          This Indenture is subject to the provisions of the TIA which are required
to be part of this Indenture, and shall, to the extent applicable, be governed
by such provisions.



          Section 14.2 Notices.



          Any notice or communication to the Company, Fisher, any other Guarantor or
the Trustee is duly given if in writing (which may be by facsimile with the
original to follow) and delivered in person or mailed by first-class mail to
the address set forth below:



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	 	 	(a) if to the Company or to any Guarantor (other than Fisher):
	 
	 	 	Apogent Technologies Inc.

C/O Fisher Scientific International Inc.

One Liberty Lane

Hampton, New Hampshire 03842

Attn: General Counsel

Fax: (603) 929-2379
	 
	 	 	With a copy to:
	 
	 	 	Quarles & Brady LLP
	 	 	411 East Wisconsin Avenue
	 	 	Milwaukee, Wisconsin 53202
	 	 	Attn.: Joe Masterson, Esq.
	 	 	Fax: (414) 271-3552
	 	 	Telephone: (414) 277-5169
	 
	 	 	(b) if to Fisher:
	 
	 	 	Fisher Scientific International Inc.
	 	 	One Liberty Lane
	 	 	Hampton, New Hampshire 03842
	 	 	Fax: (603) 929-2379
	 	 	Attention: General Counsel
	 
	 	 	With a copy to:
	 
	 	 	Skadden, Arps, Slate, Meagher & Flom LLP
	 	 	Four Times Square
	 	 	New York, New York 10036
	 	 	Fax: (212) 735-2000
	 	 	Attention: Richard Aftanas, Esq.
	 
	 	 	(c) if to the Trustee:
	 
	 	 	The Bank of New York
	 	 	101 Barclay Street, Floor 8 West
	 	 	New York, New York 10286
	 	 	Attn: Corporate Trust Administration
	 	 	Fax: (212) 815-5704/5707
	 	 	Telephone: (212) 815-4779





          The Company, Fisher, any other Guarantor or the Trustee by notice to the
other parties may designate additional or different addresses for subsequent
notices or communications.



91









 





          Any notice or communication to a Holder shall be mailed by first class
mail to its address shown on the Register kept by the Registrar. Failure to
mail a notice or communication to a Holder or any defect in such notice or
communication shall not affect its sufficiency with respect to other Holders.
If the Company, Fisher or any other Guarantor mails a notice or communication
to Holders, it shall mail a copy to the Trustee at the same time.



          If a notice or communication is mailed or sent in the manner provided
above within the time prescribed it is duly given as of the date it is mailed,
whether or not the addressee receives it, except that notice to the Trustee
shall only be effective upon receipt thereof by the Trustee.



          Section 14.3 Communication by Holders with Other Holders.



          Holders may communicate pursuant to Section 312(b) of the TIA with other
Holders with respect to their rights under the Securities or this Indenture.
The Company, Fisher, any other Guarantor, the Trustee, the Registrar and anyone
else shall have the protection of Section 312(c) of the TIA.



          Section 14.4 Acts of Holders of Debentures.



          (a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders of
Debentures may be embodied in and evidenced by:




     (1) one or more instruments of substantially similar
tenor signed by such Holders in person or by agent or proxy
duly appointed in writing;




     (2) the record of Holders of Debentures voting in
favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of
Debentures duly called and held in accordance with the
provisions of Article 8; or




     (3) a combination of such instruments and any such
record.



Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered
to the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the “Act” of the Holders
of Debentures signing such instrument or instruments and so voting at such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent or proxy, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 5.1)
conclusive in favor of the Trustee, and the Company if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 8.6.



92









 








          (b) The fact and date of the execution by any Person of any such
instrument or writing may be provided in any manner which the Trustee
reasonably deems sufficient.



          (c) The principal amount and serial numbers of Securities held by any
Person, and the date of such Person holding the same, shall be proved by the
Register.



          (d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of the Holders of any Debenture shall bind every
future Holder of the same Debenture and the Holder of every Debenture issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, the Company in reliance thereon, whether or not notation of such
action is made upon such Debenture.



          Section 14.5 Certificate and Opinion as to Conditions Precedent.



          In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.



          Any certificate or opinion of an officer of the Company or any Guarantor
may be based, insofar as it relates to legal matters, upon an Opinion of
Counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the Opinion of Counsel with respect to the matters upon which
such certificate or opinion is based is erroneous. Any such Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
representations by, an officer or officers of the Company or such Guarantor, as
applicable, stating that the information with respect to such factual matters
is in the possession of the Company or such Guarantor, as applicable, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or representations with respect to such matters are erroneous.



          Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.



          Upon any application or request by the Company or any Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company
or such Guarantor, as applicable shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such Counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such



93









 




particular application or request, no additional certificate or opinion
need be furnished; provided however, that, at any time that an Opinion of
Counsel is required to be delivered hereunder, the opining counsel may, with
the consent of the Trustee, deliver the Opinion of Counsel in question
addressed to a party other than the Trustee with text to the effect that the
Trustee may rely on such opinion rather than by delivering a separate Opinion
of Counsel to the Trustee directly.




          Section 14.6 Statements Required in Certificate or Opinion.



          Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:




     (1) a statement that each individual signing such
certificate or opinion on behalf of the Company or relevant
Guarantor, as applicable, has read such covenant or
condition and the definitions herein relating thereto;




     (2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;




     (3) a statement that, in the opinion of each such
individual, he has made such examination or investigation
as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and




     (4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.



          Section 14.7 Effect of Headings and Table of Contents.



          The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.



          Section 14.8 Successors and Assigns.



          All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.



          Section 14.9 Separability Clause.



          In case any provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



          Section 14.10 Benefits of Indenture.



94









 





          Nothing contained in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of Securities, any benefit or legal or
equitable right, remedy or claim under this Indenture.



          Section 14.11 Governing Law.



          THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.



          Section 14.12 Counterparts.



          This instrument may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original but all such
counterparts shall together constitute but one and the same instrument.



          Section 14.13 Legal Holidays.



          In any case where any Interest Payment Date, Redemption Date, Repurchase
Date or Stated Maturity of any Debenture or the last day on which a Holder of a
Debenture has a right to convert such Debenture shall not be a Business Day at
any Place of Payment or Place of Conversion, then (notwithstanding any other
provision of this Indenture or of the Debenture) payment of interest, if any,
or principal or conversion of the Debenture, need not be made at such Place of
Payment or Place of Conversion on such day, but may be made on the next
succeeding Business Day at such Place of Payment or Place of Conversion with
the same force and effect as if made on the Interest Payment Date, Redemption
Date, Repurchase Date or at the Stated Maturity or on such last day for
conversion; provided, however, that in the case that payment is made on such
succeeding Business Day, no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date,
Repurchase Date or Stated Maturity, as applicable.



          Section 14.14 Recourse Against Others.



          No recourse for the payment of the principal or interest, if any, on any
Debenture, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, shareholder, officer or director or
manager, as such, past, present or future, of the Company or Fisher or of any
successor entity to either the Company or Fisher, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance thereof and
as part of the consideration for the issue thereof, expressly waived and
released.



95









 





          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.



	 	 	 	 	 
	 	 	APOGENT TECHNOLOGIES INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	FISHER SCIENTIFIC

INTERNATIONAL INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







96









 






	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, AS 

TRUSTEE AND NOT IN ITS

INDIVIDUAL CAPACITY
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







97









 






EXHIBIT A




[Face of Debenture]




APOGENT TECHNOLOGIES INC.




2.25% Convertible Senior Debentures due 2021





     Convertible into Common Stock of, and guaranteed as to payment by, Fisher
Scientific International, Inc., subject to certain conditions in the Indenture.



	 	 	 	 	 	 	 
	CUSIP No.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Registered No.    

	 	Principal Amount:
	 	$	300,000,000	 








     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.




     THIS DEBENTURES MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC OR BY A
NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE
TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.




     APOGENT TECHNOLOGIES INC., a corporation duly organized and existing under
the laws of Wisconsin (herein called the “Company,” which term includes any
successor corporation under the Indenture referred to on the reverse hereof),
for value received, hereby promises to pay to CEDE & CO. or registered assigns,
the principal sum of $   (   Dollars) on October 15, 2021,
and to pay Interest (including Contingent Interest) thereon from and including
August [3], 2004 or from and including the most recent Interest Payment Date
(as hereinafter defined)to which Interest (including Contingent Interest) has
been paid or duly provided for, as the case may be.




     Interest (including Contingent Interest) will be paid semiannually in
arrears on April 15 and October 15 of each year (each an “Interest Payment
Date”), commencing October 15, 2004, at the rates per annum specified on the
reverse hereof, until the principal hereof is paid or made available for
payment. The Interest (including Contingent Interest) so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Debenture
(or one or more predecessor Debenture) is registered in the Security Register



A-1









 





at the close of business on the Regular Record Date for such Interest
(including Contingent Interest), which shall be the April 1 or October 1, as
the case may be, next preceding such Interest Payment Date. Except as
otherwise provided in the Indenture, any such Interest (including Contingent
Interest) not so punctually paid or duly provided for will forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Debenture (or one or more predecessor Debenture)
is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof is to be
given to Holders of Debenture not less than 10 calendar days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Debenture may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.




     While this Debenture is represented by one or more Book-Entry Notes
registered in the name of the U.S. Depositary or its nominee, the Company will
cause payments of principal and Interest (including Contingent Interest) on
such Book-Entry Notes to be made to the U.S. Depositary or its nominee, as the
case may be, by wire transfer to the extent, in the funds and in the manner
required by agreements with, or regulations or procedures prescribed from time
to time by, the U.S. Depositary or its nominee, and otherwise in accordance
with such agreements, regulations and procedures.




     REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS DEBENTURE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.




     Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, or its successor as Trustee, or its
Authenticating Agent, by manual signature of an authorized signatory, this
Debenture will not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.



A-2









 






     IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.



Dated: August [3], 2004




	 	 	 	 	 
	 	 	APOGENT TECHNOLOGIES INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







	 	 	 
	TRUSTEE’S CERTIFICATE OF AUTHENTICATION
	 	 
	This is one of the series of Debt Securities issued under the
within-mentioned Indenture.
	 	 
	
THE BANK OF NEW YORK,

as Trustee
	 	 







	 	 	 	 	 
	By:

	 	


	 	 
	

	 	Authorized Signatory	 	 







A-3









 





[Reverse of Debenture]




APOGENT TECHNOLOGIES INC.




2.25% Convertible Senior Debentures due 2021





     SECTION 1. General. This Debenture is one of a duly authorized issue of
debt securities of the Company (herein called the “Debentures”), issued and to
be issued in one or more series under an Indenture, dated as of August [3],
2004, as amended or supplemented from time to time (the “Indenture”), among the
Company, Fisher Scientific International Inc. (“Fisher”) and The Bank of New
York, as Trustee (herein called the “Trustee,” which term includes any
successor trustee under the Indenture), to which Indenture reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, Fisher, the Trustee and the Holders
of the Debentures and of the terms upon which the Debentures are, and are to
be, authenticated and delivered. This Debenture is one of the Debt Securities
of the series designated on the face hereof as “2.25% Convertible Senior
Debentures due 2021.” The terms, conditions and provisions of the Debentures
are those stated in the Indenture, those made a part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended, and those set forth
in this Debenture. To the extent that the terms, conditions and other
provisions of this Debenture modify, supplement or are inconsistent with those
of the Indenture, then the terms, conditions and other provisions of the
Indenture shall govern. All terms used in this Debenture that are defined in
the Indenture shall have the meanings assigned to them in the Indenture.




     SECTION 2. Interest and Payments. This Debenture will bear Interest (i)
prior to the occurrence of any Reset Transaction, at a rate of 2.25% per annum,
and (ii) following the occurrence of a Reset Transaction, at the Adjusted
Interest Rate related to such Reset Transaction to, but not including, the
effective date of any succeeding Reset Transaction.




     In addition, Contingent Interest will accrue on this Debenture during any
six-month period from April 15 to October 14 and from October 15 to April 14,
commencing with the six-month period beginning October 15, 2004, under the
conditions specified in the Indenture at a rate equal the greater of (i) a per
annum rate equal to 5.0% of the Company’s estimated per annum borrowing rate
for senior non-convertible, fixed rate Indebtedness with a Maturity comparable
to this Debenture and (ii) 0.30% per annum.




     Interest on this Debenture, including Contingent Interest, will be payable
on the Interest Payment Date or Interest Payment Dates as specified on the face
hereof and, in either case, at Maturity. Except as provided below, Interest
(including Contingent Interest) will be paid (i) if this Debenture is
represented by one or more Book-Entry Notes, to DTC in immediately available
funds, (ii) if this Debenture is represented by one or more certificated
Debentures having an aggregate principal amount at Maturity of $5,000,000 or
less by check mailed to the Holders of such Debentures and (iii) if this
Debentures is represented by one or more certificated Debentures having an
aggregate principal amount at Maturity of more than $5,000,000 by wire transfer
in immediately available funds at the election of the Holders of such
Debentures. Principal will be paid




A-4









 




(i) if this Debenture is represented by one or more Book-Entry Notes, to
DTC in immediately available funds or (ii) if this Debenture is represented by
one or more certificated Debentures, at our office or agency in New York City,
which initially will be the office or agency of the trustee in New York City.




     Payments on this Debenture with respect to any Interest Payment Date or
Maturity will include Interest (including Contingent Interest) accrued from and
including the original date of issuance, or from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, to
but excluding such Interest Payment Date or Maturity. Interest (including
Contingent Interest) on the Debentures will be computed and paid (i) for any
full semi-annual period, on the basis of a 360-day year of twelve 30-day months
and (ii) for any period shorter than a full semi-annual period for which
Interest (including Contingent Interest) is calculated, on the basis of a
30-day month and, for such periods of less than a month, the actual number of
days elapsed over a 30-day month.



     Except as provided below, if any Debenture is surrendered for conversion
on any day other than an Interest Payment Date, the Holder of such Debenture
shall not be entitled to receive any Interest (including Contingent Interest)
that has accrued on such Debenture since the prior Interest Payment Date. By
delivery to the Holder of the number of shares of Common Stock or other
consideration issuable upon conversion in accordance with Indenture, any
accrued and unpaid Interest (including Contingent Interest) on such Debenture
shall be deemed to have been paid in full.



     If any Debenture is converted subsequent to the Regular Record Date
preceding an Interest Payment Date but on or prior to such Interest Payment
Date (except Debentures called for redemption on a Redemption Date between such
Regular Record Date and Interest Payment Date), the Holder of such Debenture at
the close of business on such Regular Record Date shall be entitled to receive
the Interest (including Contingent Interest) payable on such Debenture on such
Interest Payment Date notwithstanding the conversion thereof. Any Debenture
converted during the period from the close of business on any Regular Record
Date next preceding any Interest Payment Date to the opening of business on
such Interest Payment Date shall (except in the case of Debentures which have
been called for redemption on a Redemption Date within such period) be
accompanied by payment in New York Clearing House funds or other funds of an
amount equal to the Interest (including Contingent Interest) payable on such
Interest Payment Date on the Debenture being surrendered for conversion.
Except as provided in this Section 2 or in Indenture, no adjustments in respect
of payments of Interest (including Contingent Interest) on any Debenture
surrendered for conversion or any dividends or distributions or Interest
(including Contingent Interest) on the Common Stock issued upon conversion
shall be made upon the conversion of any Debenture.



     All percentages resulting from any calculation with respect to this
Debenture will be rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point (with five one-millionths of a percentage point being
rounded upward) and all dollar amounts used in or resulting from any such
calculation with respect to this Debenture will be rounded to the nearest cent
(with one-half cent being rounded upward).



A-5









 





     If an Interest Payment Date or Maturity for this Debenture falls on a day
that is not a Business Day, payment of principal and Interest (including
Contingent Interest) to be made on such day with respect to this Debenture will
be made on the next day that is a Business Day with the same force and effect
as if made on the due date, and no additional interest will be payable on the
date of payment for the period from and after the due date as a result of such
delayed payment.



     SECTION 3. Redemption. This Debenture is subject to redemption at the
option of the Company, at any time on or after October 20, 2004, in whole or
from time to time in part in increments of $1,000 or an integral multiple of
$1,000 (provided that any remaining principal amount hereof shall be an
authorized denomination), at a Redemption Price equal to 100% of the principal
amount, plus accrued and unpaid Interest, including Contingent Interest, to,
but excluding, the Redemption Date. However, payments due with respect to this
Debenture on or prior to the Redemption Date will be payable to the Holder of
this Debenture of record at the close of business on the relevant Regular
Record Date specified on the face hereof, all as provided in the Indenture.
The Company may exercise such option by causing the Trustee to mail a notice of
such redemption, at least 20 but not more than 60 calendar days prior to the
date of redemption, in accordance with the provisions of the Indenture. In the
event of redemption of this Debenture in part only, this Debenture will be
cancelled and new Debentures representing the unredeemed portion hereof will be
issued in the name of the Holder hereof.







     SECTION 4. Conversion. Subject to and in compliance with the provisions
of the Indenture, a Holder is entitled, at such Holder’s option, to convert the
Holder’s Debentures (or any portion of the principal amount thereof that is
$1,000 or an integral multiple $1,000), into fully paid and nonassessable
shares of Common Stock (or, at the election of the Company as
provided in the Indenture, cash or a
combination of Common Stock and cash) at the Conversion Price in effect at the
time of conversion. The Company will notify Holders of any event triggering
the right to convert the Debentures as specified above in accordance with the
Indenture.







     A Debenture in respect of which a Holder has delivered a Repurchase Notice
exercising the option of such Holder to require the Company to repurchase such
Debenture may be converted only if such notice of exercise is withdrawn in
accordance with the terms of the Indenture.



     The initial Conversion Rate is 18.3655 shares of Common Stock per $1,000
principal amount of Debentures (a Conversion Price of approximately $54.45 per
share), subject to adjustment in certain events described in the Indenture. A
Holder that surrenders Debentures for conversion will receive cash or a check
in lieu of any fractional share of Common Stock. The Company from time to time
may voluntarily reduce the Conversion Price.



     To surrender a Debenture for conversion, a Holder must (1) complete and
manually sign the conversion notice below (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent, (2)
surrender the Debenture



A-6









 




to the Conversion Agent, (3) furnish appropriate endorsements and transfer
documents and (4) pay any transfer or similar tax, if required.




     No fractional shares of Common Stock shall be issued upon conversion of
any Debenture. Instead of any fractional share of Common Stock that would
otherwise be issued upon conversion of such Debenture, the Company shall pay a
cash adjustment as provided in the Indenture.



     No payment or adjustment will be made for dividends on the shares of
Common Stock, except as provided in the Indenture.



     If Fisher (i) is a party to a consolidation, merger or binding share
exchange (ii) reclassifies the Common Stock or (iii) conveys, transfers or
leases its properties and assets substantially as an entirety to any Person,
the right to convert a Debenture into shares of Common Stock may be changed
into a right to convert it into securities, cash or other assets of Fisher or
such other Person.



     SECTION 5. Repurchase By the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture and at the option of the
Holder, on October 20, 2004, October 15, 2006, October 15, 2011 and October 15,
2016, the Company shall become obligated to purchase all of such Holder’s
Debentures, or any portion of the principal amount thereof that is equal to any
integral multiple of $1,000, at a Repurchase Price equal to 100% of the
principal amount of the Debentures to be repurchased, plus accrued and unpaid
Interest (including Contingent Interest) to, but excluding October 20, 2004,
October 15, 2006, October 15, 2011 and October 15, 2016, as the case may be.
In addition, subject to the terms and conditions of the Indenture and at the
option of the Holder, following the occurrence of a Change of Control, the
Company shall become obligated to purchase all of such Holder’s Debentures, or
any portion of the principal amount thereof that is equal to any integral
multiple of $1,000, on the date that is 45 days after the date of the Company
Notice given in connection with such Change of Control at a Repurchase Price
equal to 100% of the principal amount of the Debentures to be repurchased, plus
accrued and unpaid Interest (including Contingent Interest) to, but excluding,
the Change of Control Repurchase Date.



     To exercise such Repurchase Right a Holder shall deliver to the Trustee a
Repurchase Notice containing the information set forth in the Indenture, at any
time on or prior to the close of business on the date that is 20 Business Days
prior to the applicable Repurchase Date and shall deliver to the Paying Agent
the Debentures to be repurchased as set forth in the Indenture.



     Holders have the right to withdraw any Repurchase Notice by delivering to
the Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.



     If cash sufficient to pay the Repurchase Price of all Debentures or
portions thereof to be purchased as of the Repurchase Date is deposited with
the Paying Agent on the Business Day following the applicable Repurchase Date,
Interest (including Contingent



A-7









 




Interest) ceases to accrue on such Debentures (or portions thereof)
immediately after such applicable repurchase date, and the Holder thereof shall
have no other rights as such other than the right to receive the Repurchase
Price upon surrender of such Debentures.




     SECTION 6. Tax Treatment. The Company agrees, and by acceptance of a
beneficial ownership interest in the Debentures each beneficial holder of
Debentures will be deemed to have agreed unless otherwise required by the
Internal Revenue Service, for United States federal income tax purposes (1) to
treat the Debentures as indebtedness that is subject to Treas. Reg. Sec.
1.1275-4 (the “Contingent Payment Regulations”) and, for purposes of the
Contingent Payment Regulations, to treat the fair market value of any stock
beneficially received by a beneficial holder upon any conversion of the
Debentures as a contingent payment and (2) to be bound by the Company’s
determination of the “comparable yield” and “projected payment schedule,”
within the meaning of the Contingent Payment Regulations, with respect to the
Debentures. A Holder of Debentures may obtain the amount of original issue
discount, issue date, yield to maturity, comparable yield and projected payment
schedule by submitting a written request for it to the Company at the following
address: Apogent Technologies Inc., One Liberty Lane, Hampton, New Hampshire
03842, Attention: General Counsel.



     SECTION 7. Paying Agent, Conversion Agent and Registrar. The Bank of New
York will act as Paying Agent, Conversion Agent and Security Registrar. The
Company may appoint and change any Paying Agent, Conversion Agent or Security
Registrar without notice, other than notice to the Trustee; provided, that the
Company will maintain at least one Paying Agent in the State of New York, City
of New York, Borough of Manhattan, which shall initially be an office or agency
of the Trustee. The Company or any of its Subsidiaries or any of their
Affiliates may act as Paying Agent, Conversion Agent or Registrar.



     SECTION 8. Sinking Fund. This Debenture is not subject to a sinking
fund.



     SECTION 9. Events of Default. If any Event of Default with respect to
Debentures shall occur and be continuing, the principal of all the Debentures
may be declared due and payable in the manner and with the effect provided in
the Indenture.



     SECTION 10. Modification or Waiver; Obligation of the Company Absolute.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debentures at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Debentures. The Indenture also
contains provisions permitting the Holders of specified percentages in
principal amount of the Outstanding Debentures, on behalf of the Holders of all
Debentures, to waive, with respect to the Debentures, compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Debenture will be conclusive and binding upon such Holder and upon all
future Holders of this Debenture and of any Debenture issued upon the
registration of transfer hereof or in exchange



A-8









 




herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Debenture.




     No reference herein to the Indenture and no provision of this Debenture or
of the Indenture will alter or impair the obligations of the Company, which are
absolute and unconditional, to pay the principal of, and Interest (including
Contingent Interest) on this Debenture at the times, places and rates herein
prescribed and to convert this Debenture in accordance with the Indenture.



     SECTION 11. Discharge Legal Defeasance and Covenant Defeasance. The
provisions contained in the Indenture relating to defeasance at any time of (a)
the entire indebtedness of the Company on this Debentures and (b) certain
restrictive covenants and the related Events of Default upon compliance by the
Company with certain conditions specified therein, will not apply to this
Debentures.



     SECTION 12. Authorized Denominations. The Debentures are issuable only
in global or certificated registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000 in excess thereof. As provided in the
Indenture and subject to certain limitations therein specified and to the
limitations described below, if applicable, the Debentures are exchangeable for
a like aggregate principal amount of Debentures with a like Stated Maturity and
with like terms and conditions of a different authorized denomination, as
requested by the Holder surrendering the same.



     SECTION 13. Registration of Transfer. As provided in the Indenture and
subject to certain limitations therein specified and to the limitations
described below, if applicable, the transfer of this Debenture is registerable
in the Security Register upon surrender of this Debenture for registration of
transfer at the office or agency of the Company maintained for that purpose
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar (which will initially be
the Trustee at its principal corporate trust office located in the Borough of
Manhattan, The City of New York), duly executed by the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Debentures
of authorized denominations and for the same Stated Maturity and aggregate
principal amount, will be issued to the designated transferee or transferees.



     This Debenture is exchangeable for certificated Debentures only upon the
terms and conditions provided in the Indenture. Except as provided in the
Indenture, owners of beneficial interests in this Book-Entry Note will not be
entitled to receive physical delivery of Debentures in certificated registered
form and will not be considered the Holders thereof for any purpose under the
Indenture.



     No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.



     SECTION 14. Owners. Prior to due presentment of this Debenture for
registration of transfer, the Company, the Trustee and any agent of the Company
or the



A-9









 




Trustee may treat the Person in whose name this Debenture is registered as
the owner hereof for all purposes, whether or not this Debenture be overdue and
notwithstanding any notation of ownership or other writing hereon, and none of
the Company, the Trustee or any such agent will be affected by notice to the
contrary.




     SECTION 15. Governing Law. The Indenture and the Debentures will be
governed by and construed in accordance with the laws of the State of New York,
without regard to the conflicts of laws principles thereof.



     SECTION 16. Defined Terms. All terms used in this Debentures that are
defined in the Indenture will have the meanings assigned to them in the
Indenture unless otherwise defined herein; and all references in the Indenture
to “Debt Security” or “Debt Securities” will be deemed to include the
Debentures.



A-10









 





[TO BE ATTACHED TO GLOBAL SECURITIES]




SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITIES




                    The following increases or decreases in this Global Security have been
made:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal	 	Signature of
	 	 	Amount of	 	Amount of	 	Amount of this	 	authorized
	 	 	decrease in	 	increase in	 	Global Security	 	signatory of
	 	 	Principal	 	Principal	 	following such	 	Trustee or
	 	 	Amount of this	 	Amount of this	 	decrease or	 	Securities
	Date
	 	Global Security
	 	Global Security
	 	increase
	 	Custodian








A-11









 






ABBREVIATIONS




     The following abbreviations, when used in the inscription on the face of
this instrument, will be construed as though they were written out in full
according to applicable laws or regulations:




          TEN COM — as tenants in common




          TEN ENT — as tenants by the entireties




          JT TEN — as joint tenants with right of survivorship and not
as tenants in common



	 	 	 	 	 	 	 	 	 
	UNIF GIFT MIN ACT	 	Custodian

	 	 	(Cust)	 	(Minor)
	 
	 	 	Under Uniform Gifts to Minors Act

	 	 	(State)







          Additional abbreviations may also be used though not in the above list.



A-12









 





          Fisher (as defined in the Indenture referred to in the Debentures upon
which this notation is endorsed and hereinafter referred to as “Fisher”) hereby
agrees to guarantee, on a senior unsecured basis (such guarantee by Fisher
being referred to herein as the “Guarantee”) effective as of the date specified
in Section 13.3 of the Indenture (i) the due and punctual payment of the
principal of and Interest (including Contingent Interest) on the Debentures,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue principal and interest, if any, on the Debentures,
to the extent lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms set forth in Article 13 of the Indenture and (ii) in case of any
extension of time of payment or renewal of any Debentures or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The Guarantee shall automatically,
without action by any person, be effective on and after the Effective Date as
defined in the Indenture.



          No stockholder, officer, director, employee or incorporator, as such,
past, present or future, of Fisher shall have any liability under the Guarantee
by reason of his or its status as such stockholder, officer, director, employee
or incorporator.



          The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Debentures upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized signatories.



	 	 	 	 	 
	 	 	FISHER SCIENTIFIC 
INTERNATIONAL INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	 	 	Name:
	

	 	 	 	Title:







A-13









 






EXHIBIT B




ASSIGNMENT FORM




          To assign this Security, fill in the form below and have your signature
guaranteed: (I) or (we) assign and transfer this Security to:






     



(Insert assignee’s social security or tax I.D. number)







     



(Print or type assignee’s name, address and zip code)



and irrevocably appoint    to transfer this Security on the books
of the Company. The agent may substitute another to act for him.





	 	 	 
	Your Name:
	 	 
	

	 	

	

	 	(Print your name exactly as it appears on the face of this Security)
	 
	 	 
	Dated:
	 	 
	

	 	

	 
	 	 
	Your Signature:
	 	 
	

	 	

	

	 	(Sign exactly as your name appears on the face of this Security)
	 
	 	 
	
Signature Guarantee*:
	 	 
	

	 	












	*	 	Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee)




B-1









 










EXHIBIT C




REPURCHASE NOTICE FOR OPTIONAL REPURCHASE RIGHTS




          (1) Pursuant to Article 11 of the Indenture, dated as of August [3], 2004,
to the Indenture, the undersigned hereby requests and instructs the Company to
repurchase this Debenture, or any portion of the principal amount hereof (which
is $1,000 in principal amount or an integral multiple of $1,000), below
designated, in accordance with the terms and conditions specified in such
Article 11.



          (2) The undersigned hereby directs the Trustee or the Company to pay the
undersigned an amount in cash equal to 100% of the principal amount to be
repurchased (as set forth below), plus accrued and unpaid Interest, including
Contingent Interest, to the Optional Repurchase Date (the “Optional Repurchase
Price”), as provided in the Indenture.



          (3) The undersigned elects (check one):



	 	 	 	 	 
	

	 	o
	 	to receive the Optional
Repurchase Price with respect to the following
portions of the following Debenture:
	

	 
	  

	 	 	 	Debentures certificate number:             
	

	 
	 

	 	 	 	Principal amount to be repurchased (if less
than all): $             
	

	 
	

	 	 	 	Remaining principal amount after repurchase: $             
	 

	 	 	 	   
	

	 	o
	 	to receive the Optional
Repurchase Price with respect to the full
principal amount of all of the Debentures that
are subject to this notice.







Notice: If the Holder fails to make an election, the Holder shall be deemed to
have elected to receive the Optional Repurchase Price for the full principal
amount of all of the Debentures subject to this notice.




	 	 	 
	Dated:
	 	

	
	 	

	

	 	Signature(s)
	 
	Signature(s) must be guaranteed by an
	 	 
	Eligible Guarantor Institution with
	 	 
	membership in an approved signature
	 	 
	guarantee program pursuant to Rule
	 	 
	17Ad-15 under the Securities Exchange
	 	 
	Act
of
1934.                                            
	 	 









C-1









 






	 	 	 
	                                            [Signature Guaranteed]
	 	 
	If only a portion of this Debenture is
	 	 
	to be repurchased, please indicate:
	 	 
	1. Principal amount to be repurchased:
	 	 
	$                                            
	 	 
	 
	2. Remaining principal amount after
	 	 
	repurchase: $                                            
	 	 
	                                            
	 	 
	Social Security or Other Taxpayer
	 	 
	Identification Number
	 	 







C-2









 






EXHIBIT D




REPURCHASE NOTICE FOR CHANGE OF CONTROL REPURCHASE 
RIGHTS




	 	 	 
	TO:

	 	Apogent Technologies Inc.
	

	 	One Liberty Lane
	

	 	Hampton, New Hampshire 03842







          Pursuant to the Indenture among Apogent Technologies Inc., (the
“Company”), Fisher Scientific International Inc. (“Fisher”) and The Bank of New
York, as Trustee, dated August [3], 2004 (the “Indenture”), as such Indenture
is amended, modified or supplemented from time to time in accordance with the
terms thereof, the undersigned registered owner of this Security hereby
irrevocably acknowledges receipt of a notice from the Company as to the
occurrence of a Change of Control (as defined in the Indenture) with respect to
the Company or Fisher, as applicable, and requests and instructs the Company to
repay the entire principal amount of this Security, or the portion thereof
(which is $1,000 principal amount or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture referred to in this
Security, together with Interest (including Contingent Interest) accrued and
unpaid to, but excluding, such date, to the registered holder hereof.







	 	 	 	 
	 	Your Name:
	 	 
	 	

	 	(Print your name exactly as it appears on the face of this Security)
	 	 
	 	 
	 	Dated:
	 	 
	 	

	 	 
	 	 
	 	Your Signature:
	 	 
	 	

	          (Sign exactly as your name appears on the face of this Security)
	 	 
	 	 
	 	Social
Security or other Taxpayer Identification Number:
                          

	 
	 	Principal
amount to be converted (if less than all): $                                     

	 
	
Signature Guarantee*:

	 	













	*	 	Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee)




D-1









 










EXHIBIT E




FORM OF CONVERSION NOTICE




	 	 	 
	TO:

	 	Apogent Technologies Inc.
	

	 	One Liberty Lane
	

	 	Hampton, New Hampshire 03842







          Pursuant to the Indenture among Apogent Technologies Inc., (the
“Company”), Fisher Scientific International Inc. and The Bank of New York, as
Trustee, dated August [3], 2004 (the “Indenture”), as such Indenture is
amended, modified or supplemented from time to time in accordance with the
terms thereof, the undersigned registered owner of this Security hereby
irrevocably exercises the option to convert this Security, or the portion
hereof (which is $1,000 principal amount or an integral multiple thereof) below
designated, into shares of Common Stock and/or cash or a combination thereof in
accordance with the terms of the Indenture referred to in this Security, and
directs that the shares issuable and deliverable upon such conversion, together
with any check in payment for fractional shares and any Securities representing
any unconverted principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below. If
shares or any portion of this Security not converted are to be issued in the
name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto. To the extent provided in the
Indenture, any amount required to be paid to the undersigned on account of
Interest (including Contingent Interest) accompanies this Security.







	 	 	 	 
	 	Your Name:
	 	 
	 	

	 	(Print your name exactly as it appears on the face of this Security)
	 	 
	 	 
	 	Dated:
	 	 
	 	

	 	 
	 	 
	 	Your Signature:
	 	 
	 	

	          (Sign exactly as your name appears on the face of this Security)
	 	 
	 	 
	 	Social
Security or other Taxpayer Identification Number:
                          

	 
	 	Principal
amount to be converted (if less than all): $                                     

	 
	
Signature Guarantee*:

	 	














	*	 	Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee)




E-1









 










          Fill in for registration shares (if to be issued) and Securities (if to be
delivered) other than to and in the name of the registered holder:











(Name)











(Street Address)











(City, State and Zip Code)




E-2









 








EXHIBIT F




FORM OF SUPPLEMENTAL INDENTURE TO ADD NEW GUARANTORS




          This Supplemental Indenture, dated as of [   ] (this “Supplemental
Indenture” or “Guarantee”), among [Insert Name of New Guarantor] (the “New
Guarantor”), Apogent Technologies Inc. (together with its successors and
assigns, the “Company”), Fisher Scientific International Inc. (“Fisher”), each
other Guarantor under the Indenture (as defined below) and The Bank of New
York, as Trustee under the Indenture referred to below.



W I T N E S S E T H:




          WHEREAS, the Company, Fisher and the Trustee have heretofore executed and
delivered an Indenture, dated as of August    , 2004 (as amended, supplemented,
waived or otherwise modified, the “Indenture”), providing for the issuance of
an aggregate principal amount of $[300] million of 2.25% Convertible Senior
Debentures due 2021 of the Company (the “Securities”);



          WHEREAS, Section 13.1 of the Indenture provides that the Company is
required to cause each Subsidiary (including any created or acquired by the
Company) which becomes a guarantor under the Credit Agreement to execute and
deliver to the Trustee a Supplemental Indenture pursuant to which such
Subsidiary will unconditionally guarantee, on a joint and several basis with
the other Guarantors, the full and prompt payment of the principal of and
Interest (including Contingent Interest), if any, on the Securities on a senior
basis; and



          WHEREAS, pursuant to Section 7.1 of the Indenture, the Trustee and the
Company are authorized to execute and deliver this Supplemental Indenture to
amend the Indenture, without the consent of any Holder;



          NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company, Fisher, the other Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Securities as follows:



ARTICLE I




Definitions




          SECTION 1.1. Defined Terms. As used in this Supplemental Indenture,
terms defined in the Indenture or in the preamble or recital hereto are used
herein as therein defined, except that the term “Holders” in this Guarantee
shall refer to the term “Holders” as defined in the Indenture and the Trustee
acting on behalf or for the benefit of such holders. The words “herein,”
“hereof” and “hereby” and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.



F-1









 





ARTICLE II




Agreement to be Bound; Guarantee




          SECTION 2.1. Agreement to be Bound. The New Guarantor hereby becomes a
party to the Indenture as a Guarantor and as such will have all of the rights
and be subject to all of the obligations and agreements of a Guarantor under
the Indenture. The New Guarantor agrees to be bound by all of the provisions
of the Indenture applicable to a Guarantor and to perform all of the
obligations and agreements of a Guarantor under the Indenture.



          SECTION 2.2. Guarantee.



     (a) The New Guarantor hereby unconditionally guarantees, on a joint and
several basis with the other Guarantors, to each Holder of a Debenture
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, regardless of the validity and enforceability of the
Indenture, the Securities or the Obligations of the Company under the Indenture
or the Securities, that:



          (1) the principal of, and Interest (including Contingent Interest) on the
Debentures will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal
of, Interest (including Contingent Interest) on the Debentures, to the extent
lawful, and all other Obligations of the Company to the Holders or the Trustee
thereunder or under the Indenture will be promptly paid in full, all in
accordance with the terms thereof; and



          (2) in case of any extension of time for payment or renewal of any
Debentures or any of such other Obligations, that the same will be promptly
paid in full when due in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise.



     (b) Notwithstanding the foregoing, in the event that the Guarantee would
constitute or result in a violation of any applicable fraudulent conveyance or
similar law of any relevant jurisdiction, the liability of the New Guarantor
under the Indenture shall be reduced to the maximum amount permissible under
such fraudulent conveyance or similar law.



     (c) The New Guarantor hereby agrees that its obligations hereunder shall
be unconditional, regardless of the validity, regularity or enforceability of
the Securities or the Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Securities with respect to any
provisions of the Securities or the Indenture, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor.



     (d) The New Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and



F-2









 




all demands whatsoever and covenants that the Guarantee made pursuant to
this Supplemental Indenture will not be discharged except by complete
performance of the Obligations contained in the Securities and the Indenture.




     (e) To evidence the Guarantee made pursuant to this Supplemental
Indenture, the New Guarantor hereby agrees that a notation of such Guarantee
shall be endorsed by an Officer of the New Guarantor on each Debenture
authenticated and delivered by the Trustee on and after the Issue Date, which
Guarantee will be effective as of the date of this Supplemental Indenture.



     (f) Notwithstanding the foregoing, the New Guarantor hereby agrees that
the Guarantee made pursuant to this Supplemental Indenture shall remain in full
force and effect notwithstanding any failure to endorse on each Debenture a
notation of such Guarantee.



     (g) If an Officer whose signature is on this Supplemental Indenture no
longer holds that office at the time the Trustee authenticates the Debenture on
which the Guarantee made pursuant to this Supplemental Indenture is endorsed,
such Guarantee shall be valid nevertheless.



     (h) The delivery of any Debenture by the Trustee, after the authentication
thereof under the Indenture, shall constitute due delivery of the Guarantee set
forth in this Supplemental Indenture on behalf of the New Guarantor as of the
date of this Supplemental Indenture.



     (i) If any Holder or the Trustee is required by any court or otherwise to
return to the Company or the Guarantors, or any Custodian, Trustee, liquidator
or other similar official acting in relation to either the Company or any
Guarantor, any amount paid by either to the Trustee or such Holder, the
Guarantee made pursuant to this Supplemental Indenture, to the extent
theretofore discharged, shall be reinstated in full force and effect.



     (j) The New Guarantor hereby agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
The New Guarantor further agrees that, as between the Guarantors, on the one
hand, and the Holders and the Trustee, on the other hand:



          (1) the maturity of the Obligations guaranteed hereby may be accelerated
as provided in Article 4 of the Indenture for the purposes of the Guarantee
made pursuant to this Supplemental Indenture, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby; and



          (2) in the event of any declaration of acceleration of such obligations as
provided in Article 4 of the Indenture, such Obligations (whether or not due
and payable) shall forthwith become due and payable by the New Guarantor for
the purpose of the Guarantee made pursuant to this Supplemental Indenture.



F-3









 





     (k) The Guarantors shall have the right to seek contribution from any
other non paying Guarantor so long as the exercise of such right does not
impair the rights of the Holders or the Trustee under the Guarantees made
pursuant to this Indenture.



ARTICLE III




Miscellaneous




          SECTION 3.1. Notices. All notices and other communications to the New
Guarantor shall be given as provided in the Indenture to the New Guarantor, at
its address set forth below, with a copy to the Company as provided in the
Indenture for notices to the Company.



          SECTION 3.2. Parties. Nothing expressed or mentioned herein is intended
or shall be construed to give any Person, firm or corporation, other than the
Holders and the Trustee, any legal or equitable right, remedy or claim under or
in respect of this Supplemental Indenture or the Indenture or any provision
herein or therein contained.



          SECTION 3.3. Governing Law. This Supplemental Indenture shall be
governed by the laws of the State of New York, without regard to conflicts of
laws principles thereof.



          SECTION 3.4. Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby and such provision shall be ineffective
only to the extent of such invalidity, illegality or unenforceability.



          SECTION 3.5. Ratification of Indenture; Supplemental Indentures Part of
Indenture; Trustee’s Disclaimer. Except as expressly amended hereby, the
Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect. This
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every Holder of Securities heretofore or hereafter authenticated and delivered
shall be bound hereby. The Trustee makes no representation or warranty as to
the validity or sufficiency of this Supplemental Indenture.



          SECTION 3.6. Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.



          SECTION 3.7. Headings. The headings of the Articles and the sections in
this Guarantee are for convenience of reference only and shall not be deemed to
alter or affect the meaning or interpretation of any provisions hereof.



F-4









 






          IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.



	 	 	 	 	 
	 	 	[NEW GUARANTOR],

as a Guarantor
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Trustee
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	APOGENT TECHNOLOGIES INC.
	 
	

	 	By:	 	 
	

	 	 	 	

Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	FISHER SCIENTIFIC
INTERNATIONAL INC.
	 
	

	 	By:	 	 
	

	 	 	 	

Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	 	 	[GUARANTORS]
	 
	

	 	By:	 	 
	

	 	 	 	

Name:
	

	 	 	 	Title:








F-5